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2010 DIGILAW 344 (CAL)

Ravinder Kumar Jain v. M/s Om Syndicate Knitting

2010-04-01

HARBANS LAL

body2010
JUDGMENT: HARBANS LAL, J. This judgment shall dispose of Criminal Misc. No. M 29483 of 2008 as well as Criminal Misc. No. M 29507 of 2008 filed by Ravinder Kumar Jain for quashing the order dated 13.6.2008 Annexure P-1 passed by the learned Judicial Magistrate Ist Class, Faridabad vide which he alongwith respondents No.2 to 4 has been summoned to face trial under Section 138 of the Negotiable Instruments Act, 1881(for brevity the Act) and for quashing the complaint dated 13.6.2008 Annexure P-2 in both the cases. As averred in Criminal Misc. No. M 29483 of 2008, the petitioner is neither a partner in M/s Adi Nath Exports respondent No.2 nor cheque No. 185304 dated 15.3.2008 for Rs.1,00,000/-, cheque No. 185305 dated 22.3.2008 for Rs.1,00,000/-, cheque No. 144743 dated 12.5.2008 for Rs.3,00,000/-drawn on Punjab National Bank, Krishan Nagar, Delhi 110051 in the name of the complainant towards part payment has been issued by him. In fact, he is an alien to the affairs of respondent No.2. As per the partnership deed, he is not even a partner in the company. He was only a witness to the partnership deed dated 10.7.2006. In Criminal Misc. No. 29507 M of 2008 it has been averred that the petitioner is neither a partner in M/s Shri Adi Nath Exports respondent No.2 nor the cheque No. 144744 dated 13.5.2008 for Rs.2,11,705 drawn on Punjab National Bank, Krishan Nagar Delhi 110051 in the name of the complainant towards part payment has been issued by him. As per the partnership deed he is not even a partner in the company. He was only a witness to the partnership deed dated 10.7.2006. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The learned counsel for the petitioner strenuously urged that a glance through the partnership deed Annexure P-3 in both the petitions would reveal that the petitioner is not a partner in the accused firm and he is merely a witness to this partnership deed. He further puts that a meticulous perusal of the complaint annexured P-2 (in both the petitions) would reveal that as per the allegations contained therein, Gaurav Jain son of the petitioner had issued the cheques in dispute and the petitioner was not a signatory thereto. Thus by no process of reasoning the petitioner could be held liable. He further puts that a meticulous perusal of the complaint annexured P-2 (in both the petitions) would reveal that as per the allegations contained therein, Gaurav Jain son of the petitioner had issued the cheques in dispute and the petitioner was not a signatory thereto. Thus by no process of reasoning the petitioner could be held liable. To overcome these submissions, the learned counsel for the respondents maintained that there are specific allegations in both the complaints that all the accused persons after having inspected the goods were well satisfied with the quality and quantity thereof and it was thereafter that they had placed the order. Furthermore, they all had taken the delivery of fabric and thus, the petitioner is equally liable. These contentions merit rejection for the reason to be recorded hereinafter:- A careful delving into the partnership deed, Annexure P-3 would reveal that the petitioner is not a partner in the accused firm. He had merely signed the partnership deed as a witness. There is no gainsaying the fact that the cheques in dispute have been issued by Gaurav Jain only and not by the petitioner. Section 138 of the Act reads as under:- “138. Dishonour of cheque for insufficiency, etc. He had merely signed the partnership deed as a witness. There is no gainsaying the fact that the cheques in dispute have been issued by Gaurav Jain only and not by the petitioner. Section 138 of the Act reads as under:- “138. Dishonour of cheque for insufficiency, etc. of funds in the account-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the older in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation—For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability.” A plain reading of this Section shows that the drawer of the cheque would be liable for punishment for dishonour of the cheque drawn on an account maintained by him in the bank, if such cheque is drawn for a legally enforceable debt or liability. Even assuming that this Section covers cases where a cheque is issued in connection with discharge of a legally enforceable debt or liability of a person other than the drawer of the cheque, the debtor of the drawee is not made liable for the offence under this Section. Admittedly, the petitioner is not the drawer of the disputed cheques. That being so, in view of the above reproduced provisions of law, the petitioner cannot be held liable under Section 138 of the Act. In re: G. Surya Prabhavathi Vs. Nekkanti Subrahmanyeswara Rao 1999(1) Recent Criminal Reports (Criminal) 788, the cheque was issued by the husband of the petitioner for discharge of the loan obtained from the complainant for purchase of a car. It was held that simply because the car was purchased in the name of the petitioner, it does not fasten liability or punishment under Section 138 of the Act, as the said provisions contemplates of punishment only against the drawer of the cheque and not others. As would be apparent on the face of allegations in both the complaints there are no specific allegations with regard to the fact that the dishonoured cheques were issued by Gaurav Jain in connivance with his father Rakesh Kumar Jain i.e. the petitioner In re: Partap Singh Yadav and another Vs. Atal Behari Pandey 2003(1) Recent Criminal Reports (Criminal) 696 the son had issued a cheque to discharge debt of his father. The cheque was dishonoured. It was held that son is liable and not the father. Herein the petitioner is not being connected in any manner with the bounced cheques. So, there appears to be a gross miscarriage of justice that the learned trial Court has taken cognizance of the offence under Section 138 of the Act against the petitioner and summoned him for standing trial alongwith others. Palpably, the learned trial Court has bypassed the afore-quoted provisions of Section 138 ibid. So, there appears to be a gross miscarriage of justice that the learned trial Court has taken cognizance of the offence under Section 138 of the Act against the petitioner and summoned him for standing trial alongwith others. Palpably, the learned trial Court has bypassed the afore-quoted provisions of Section 138 ibid. In consequence of the preceding discussion it is held that the petitioner being not a drawer or signatory to the cheques in dispute cannot be held liable for conviction under Section 138 of the Act. Sequelly, the complaint Annexure P-2 (in both the petitions), the order dated 13.6.2008 Annexure P-1(in both the petitions) as also all consequential proceedings arising therefrom stand quashed qua the petitioner. Since the main petition has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of.