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2011 DIGILAW 234 (CHH)

MOHD. SAMI ANSARI v. STATE OF C. G.

2011-07-18

MANINDRA MOHAN SHRIVASTAVA

body2011
ORDER 1. By this petition, the petitioner has prayed for quashing of order dated 23/04/08 passed in Criminal Case No.270/08 registering offence under Section 138 of the Negotiable instruments Act against the petitioner. 2. Respondent No.2-Sunil Kumar Jain filed a complaint under Section 138 of the Negotiable instruments Act, 1881 (for short "the Act of 1881") against the petitioner and respondent No.3 on the allegation that in a business transaction, towards discharge of certain liability against purchase of certain items, respondent No.3 had issued a cheque of Rs.2,14,000/- in favour of the complainant. However, when the cheque was presented in the bank on 20/12/08, the' same was dishonoured with a note dated 21/01/08 that the fund in the account is insufficient. On the complaint so made, the learned Magistrate vide his order dated 23/4/08, after going through the complaint and other documents, found that prima facie case is made out and further directed registration of offence under Section 138 of the Act of 1881 against the petitioner and respondent No.3. Aggrieved by the aforesaid order and registration of offence against the petitioner, the petitioner preferred a revision. The learned Revisional Court however, has dismissed the revision holding that the order of issuing process is interlocutory in nature against which, no revision would lie. 3. Learned counsel for the petitioner argued that the offence under Section 138 of the Act of 1881 can be said to be made out only by one who has drawn a cheque 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. In his submission, the Court below had committed gross illegality in registering offence under Section 138 of the Act of 1881 against the petitioner because even according to the complaint, the cheque was issued by respondent No.3 - Vijay Bafna. Therefore, it is submitted that no case for registering offence under Section 138 of the Act of is made out against the petitioner. 4. Therefore, it is submitted that no case for registering offence under Section 138 of the Act of is made out against the petitioner. 4. On the other hand, learned counsel for respondent No.2 submitted that the cheque was though issued by respondent No.3, the same was towards discharge of liability of the petitioner who had purchased various items from the complainant and as the criminal liability is fastened, in case, the cheque is dishonoured towards discharge of debt or liability then the petitioner is also liable to be prosecuted for commission of offence under Section 138 of the Act of 1881. 5. Learned counsel for respondent No. 1 supports the submission of respondent No.2 whereas learned counsel for respondent No.3 submits that no case for registration of offence under Section 138 is made out either against the petitioner or respondent No.3. 6. Dishonour of cheque on insufficiency of funds in the account has been declared to be an offence under Section 138 of the Act of 1881. The provision contained in Section 138 of the Act of 1881 read out that where any cheque drawn by a person on an account maintained by him for payment of any amount of money to another person towards discharge in whole or in part of any debt or 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 the 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. 7. The word "such person" mentioned in Section 138 mean and refer to the person who has actually drawn the cheque on an account maintained by him for payment of any amount of money to another person. The legislature, therefore, intends to make liable for offence under Section 138 of the Act of 1881, one who was issued the cheque. 7. The word "such person" mentioned in Section 138 mean and refer to the person who has actually drawn the cheque on an account maintained by him for payment of any amount of money to another person. The legislature, therefore, intends to make liable for offence under Section 138 of the Act of 1881, one who was issued the cheque. There is no other provision in the Act, much less, in Section 138 which even remotely suggests that any person in addition to one who has actually issued the cheque shall also be liable for commission of offence under Section 138 CrPC in the event of dishonor of cheque in the circumstances mentioned in the provision. It is well settled that a panel statute has to be strictly construed and such provisions could not be liberally construed, so as to extend or enlarge the scope and ambit, which is not specifically expressed in the provision. The contention of learned counsel for respondent No.2 that though the cheque was not issued by the petitioner but it was the liability of the petitioner in discharge of which the cheque was issued by respondent No.3, therefore, the petitioner is also liable for being prosecuted, requires to be rejected at the threshold. The provision is very clear, unambiguous and unequivocal and operates against one, who has issued the cheque. Therefore, I am of the opinion that registration of offence under Section 138 of the Negotiable instruments Act against the petitioner is not at all made out on the face of complaint in view of the specific stand taken by the complainant in the complaint that the cheque was issued by respondent No.3. 8. Accordingly, the impugned order dated 23/04/08 registering offence I against the petitioner and issuance of process is hereby quashed. The petition is allowed. Petition Allowed.