JUDGMENT : M.R. Shah, J. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioners herein - original accused to quash and set aside the impugned complaint being Criminal Case No.4084 of 2007 filed by the respondent No.2 herein - original complainant for the offence punishable under section 138 r/w section 141 of the Negotiable Instruments Act, at the relevant time pending in the court of learned Metropolitan Magistrate, Court No.13, Ahmedabad. 2. The respondent No.2 herein – original complainant has instituted the impugned complaint being Criminal Case No.14084 of 2007 against the petitioners herein – original accused in the court of learned Metropolitan Magistrate, Ahmedabad for the offence punishable under section 138 read with section 141 of the Negotiable Instruments Act for dishonour of the cheque in question, issued by the petitioner Nos. 6 and 8 herein – original accused nos.6 and 8. That in the said complaint the learned Magistrate has directed to issue Summons against all the accused persons for the offence punishable under section 138 of the Negotiable Instruments Act. Hence, the petitioners - original accused have preferred the present petition under section 482 of the Code of Criminal Procedure. 3. Mr. G.M. Joshi, learned advocate appearing on behalf of the petitioners has stated at the bar that so far as the petitioner No.2 is concerned, he has already expired way back in the year 2008 and therefore, he is already deleted. 3.1. Mr.Joshi, learned advocate appearing on behalf of the petitioners does not press the present petition and seeks permission to withdraw the present petition QUA petitioner No.6 - original accused No.6 named Shri Rajeev Kumar Singh and petitioner No.8 - original accused No.8 named Shri Daljit Singh, who have issued cheques in question and who are signatory to the cheque in question. Permission as prayed for is granted. Present petition is dismissed as withdrawn QUA petitioner Nos.6 and 8 – original accused Nos.6 and 8. Rule is discharged accordingly. 3.2. Under the circumstances, now the present petition is required to required to be decided so far as the rest of the petitioners are concerned i.e. petitioner Nos.1, 3 to 5, 7, 9 and 10. 3.3. Mr. Present petition is dismissed as withdrawn QUA petitioner Nos.6 and 8 – original accused Nos.6 and 8. Rule is discharged accordingly. 3.2. Under the circumstances, now the present petition is required to required to be decided so far as the rest of the petitioners are concerned i.e. petitioner Nos.1, 3 to 5, 7, 9 and 10. 3.3. Mr. Joshi, learned advocate appearing on behalf of the petitioner Nos.1, 3 to 5, 7, 9 and 10 has vehemently submitted that as such the said remaining petitioners have not committed offence under section 138 of the Negotiable Instruments Act, as alleged. It is submitted that the cheque in question which has been dishonoured and for which the impugned complaint has been filed, is neither issued by the rest of the petitioners nor the same is drawn from the Bank Account maintained by them or the original accused No.1 Company, of which the rest of the petitioners are Directors. It is submitted that admittedly the cheque in question which is dishonoured has been issued by the original accused Nos.6 and 8 and signed by them and drawn from the Bank Account maintained by them. Therefore, for the dishonour of the cheque which has been issued by the original accused Nos.6 and 8 and signed by them, and issued from the Bank Account maintained by accused Nos.6 and 8, and when such cheque is dishonoured, it cannot be said that the rest of the petitioners have committed any offence under section 138 of the Negotiable Instruments Act. It is submitted by Mr. Joshi, learned advocate appearing on behalf of the petitioners that ingredients of offence under section 138 of Negotiable Instruments Act are not satisfied so far as the reset of the petitioners are concerned and therefore, to continue the criminal proceedings against them would be abuse of process of law and court and therefore, it is requested to allow the present petition and quash and set aside the impugned complaint QUA them i.e. petitioner Nos.1, 3 to 5, 7, 9 and 10. 3.4. Mr. 3.4. Mr. Joshi, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Jugesh Sehgal v. Shamsher Singh Gogi, reported in (2009) 14 SCC 683 as well as decision of the Hon'ble Supreme Court in the case of P.J. Agro Tech Limited and Others v. Water Base Limited, reported in (2010) 12 SCC 146 as well as decision of this Court in the case of Mahendrakumar Tulsibhai Patel v. State of Gujarat and another, reported in 2008 (1) GLH 196 . By making above submissions and relying upon above decisions, it is requested to allow the present petition and quash and set aside the impugned complaint / Criminal Case. 4. Present petition is opposed by Mr.Gupta, learned advocate appearing on behalf of the respondent No.2 – ordinal complainant. He has submitted that as such the disputed cheque in question which has been dishonoured and for which the impugned complaint has been filed, has been issued/given by the original accused Nos.6 and 8 for and on behalf of the original accused No.1 Company and with respect to dues of the original accused No.1 Company and with respect to the account of the original complainant maintained by the original accused No.1 Company. Therefore, it can be said that the cheque in question which has been dishonoured is also issued by the original accused No.1 Company and the rest of the petitioners herein being Directors of original accused No.1 Company are responsible for the offence alleged to have been committed by the original accused No.1 Company. 4.1. Mr. Gupta, learned advocate appearing on behalf of the original complainant has further submitted that even there was no reply to the statutory notice by the original accused No.1 Company disputing that the Account for which the cheque in question was issued, was not maintained by the Company. 4.2. Mr.Gupta, learned advocate appearing on behalf of the original complainant has further submitted that section 138 of the Negotiable Instruments Act does not say that the Bank Account must be maintained by the accused in his/her/its own name. It is submitted that if the cheque which is issued by any person is for the dues/account of the concerned person, then the liability under section 138 of the Negotiable Instruments Act would be attracted. It is submitted that if the cheque which is issued by any person is for the dues/account of the concerned person, then the liability under section 138 of the Negotiable Instruments Act would be attracted. It is further submitted that what is stated in section 138 of the Negotiable Instruments Act is that when any cheque drawn by a person on an account maintained by him...... is returned by the Bank unpaid and on non-compliance of section 138 of the Negotiable Instruments Act, it can be said that the offence under section 138 of Negotiable Instruments Act is committed by such person who was maintaining the account for which the cheque has been issued. 4.3. Mr.Gupta, learned advocate appearing on behalf of the original complainant has also relied upon Balance-sheet of the original accused No.1 Company to submit that the Account for which the cheques were issued by the original accused nos.6 and 8 was maintained by the original accused no.1 Company and the said amount was debited in the Account maintained by the accused no.1 Company. It is submitted that for their internal convenience original accused Nos.6 and 8 might have issued cheque but if the said amount is for the Account maintained by the original accused No.1 for and/or for the dues of the original accused No.1 Company for dishonour of the said cheque, original accused No.1 and its Directors can be held liable for the offence under section 138 of the Negotiable Instruments Act. By making above submissions it is requested to dismiss the present petition. 5. Mr. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case. 6. Heard the learned advocates appearing on behalf of the respective parties at length. 6.1. The following questions arise in this petition for consideration of this Court :- (i) Whether any other person and/or Company who has not issued the cheque from the Account maintained by him/it, can be held liable for the offence under section 138 of the Negotiable Instruments Act solely on the ground that the cheque in question which has been issued, may be with respect to the dues of the accused Company/person? (ii) Who can be said to be the person who has issued the cheque? (ii) Who can be said to be the person who has issued the cheque? (iii) Who can be said to be drawer of the cheque so as to attract the liability under section 138 of the Negotiable Instruments Act? 6.2. It is the case on behalf of the original complainant that as the cheque in question has been given by the original accused Nos.6 and 8 and signed by them, was for and on behalf of the original accused No.1 Company and/or for dues of the original accused No.1 Company for the Account maintained by the original accused No.1 Company, for dishonour of the said cheque, original accused No.1 Company can be said to have issued the cheque to attract the liability under section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act Provides that where any cheque drawn by a person on an account maintained by him....... is returned by the Bank unpaid, such person can be said to have committed offence under section 138 of the Negotiable Instruments Act. “Drawer” is defined under section 7 of the Negotiable Instruments Act. As per section 7 of the Negotiable Instruments Act, maker of bill of exchange or cheque is called “drawer”. Therefore, the person/Company/Partnership Firm, as the case may be, who has signed the cheque from the Bank Account maintained by he/she/it as the case may be, can be said to be a “drawer” of the cheque and for dishonour of the said cheque, that person who has signed cheque and if said person as authorised signatory for and on behalf of the person/Partnership Firm/Company, as the case may be, with the stamp of the concerned Company or Partnership Firm, that Partnership Firm/Company can be said to be “drawer” of the cheque who can be held liable and responsible for the offence under section 138 of the Negotiable Instruments Act for dishonour of the cheque. Therefore, when the cheque in question has been issued by the original accused nos.6 and 8, signed by them, it can be said that they are “drawers” of the cheque and the original accused No.1 Company – petitioner No.1 herein, cannot be said to be “drawer” of the cheque in question solely on the ground that the said cheque might have been issued by the accused Nos.6 and 8 for the debt of original accused No.1 Company and/or with respect to the Account maintained by the original accused No.1 Company. On bare reading of section 138 of the Negotiable Instruments Act, cheque drawn by a person on an account maintained by him should be with respect to Account maintained by him with the Banker and not Account maintained between the parties with respect to the business relations. Therefore, in the present case, it can be said that the cheque in question has been drawn by the original accused Nos.6 and 8 for attracting liability under section 138 of the Negotiable Instruments Act for dishonour of the said cheque as the said cheque has been drawn by them from the Bank Account maintained by them. Therefore, it cannot be said that the original accrued No.1 and their Director have committed offence under section 138 of Negotiable Instruments Act as alleged for dishonour of the cheque in question which has been drawn by the accused Nos.6 and 8 drawn from the Bank Account maintained by them and signed by them. 6.3. Now, so far as the next contention on behalf of the learned advocate appearing on behalf of the original complainant that as the cheque in question has been given by the original accused nos.6 and 8 for the dues of the original accused No.1 Company and for and on behalf of the original accused No.1 Company and therefore, original accused No.1 and their Directors can also be held liable for the offence under section 138 of Negotiable Instruments Act is concerned, the same has no substance and the said contention cannot be accepted. 6.4. Identical question came to be considered by the Hon'ble Supreme Court in the case of Jugesh Sehgal v. Shamsher Singh Gori (supra) and in para 13, the Hon'ble Supreme Court has observed and held as under :- “13. 6.4. Identical question came to be considered by the Hon'ble Supreme Court in the case of Jugesh Sehgal v. Shamsher Singh Gori (supra) and in para 13, the Hon'ble Supreme Court has observed and held as under :- “13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled; (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that 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; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank; (v) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.” 6.5. In the case of P.J. Agro Tech Limited, the Hon'ble Supreme Court in para 13 and 14 has observed and held as under :- “13. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.” 6.5. In the case of P.J. Agro Tech Limited, the Hon'ble Supreme Court in para 13 and 14 has observed and held as under :- “13. From a reading of the said section, it is very clear that in order to attract the provisions thereof a cheque which is dishonoured will have to be drawn by a person on an account maintained by him with the 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. It is only such a cheque which is dishonoured which would attract the provisions of Section 138 of the above Act against the drawer of the cheque. 14. In the instant case, the cheque which had been dishonoured may have been issued by Respondent 11 for discharging the dues of Appellant 1 Company and its Directors to Respondent 1 Company and the respondent Company may have a good case against Appellant 1 Company for recovery of its dues before other fora, but it would not be sufficient to attract the provisions of Section 138 of the 1881 Act. The appellant Company and its Directors cannot be made liable under Section 138 of the 1881 Act for a default committed by Respondent 11. An action in respect of a criminal or a quasi-criminal provision has to be strictly construed in keeping with the provisions alleged to have been violated. The proceedings in such matters are in personam and cannot be used to foist an offence on some other person, who under the statute was not liable for the commission of such offence.” 6.6. In the case of Mahendrakumar Tulsibhai Patel (supra) this Court has also held that unless it is found that cheque in question has been issued by a person from the Bank Account maintained by him, such person cannot be prosecuted for the offence punishable under section 138 of the Negotiable Instruments Act, for the cheque which is neither issued by him nor signed by him nor the same is drawn from the Bank Account maintained by him. 6.7. 6.7. Under the aforesaid facts and circumstances and considering the aforesaid decisions, when the cheque in question which has been dishonoured is drawn by the original accused Nos.6 and 8, signed by them, issued from the Bank Account maintained by them and when for dishonour of such cheque the impugned complaint has been filed, it cannot be said that the original petitioner No.1 and others remaining petitioners (being directors of original accused No.1 Company) except original accused Nos.6 and 8, have committed any offence under section 138 r/w section 141 of the Negotiable Instruments Act, as alleged. Under the circumstances to continue the proceedings against them would be unnecessary harassment to them and it shall be abuse of process of law and court. Under the circumstances, this is a fit case to exercise powers under section 482 of the Code of Criminal Procedure and to quash and set aside the impugned complaint qua the rest of the petitioners. However, the same shall be without prejudice to the rights and contentions of the original complainant/prosecution against the original accused Nos.6 and 8 who shall be tried in accordance with law and on merits, without in any way being influenced by the present order. 7. In view of the above and for the reasons stated above, present petition is allowed in part. Present petition is allowed QUA petitioner Nos.1, 3, 4, 5, 7, 9 and 10 – original accused Nos. 1, 3, 4, 5, 7, 9 and 10 and present petition is dismissed as withdrawn QUA petitioner Nos.6 and 8 - original accused Nos.6 and 8. The impugned complaint being Criminal Case No.4084 of 2007 filed by the respondent No.2 herein - original complainant for the offence punishable under section 138 r/w section 141 of the Negotiable Instruments Act, at the relevant time pending in the court of learned Metropolitan Magistrate, Court No.1, 3, Ahmedabad is hereby quashed and set aside QUA petitioner Nos.1, 3, 4, 5, 7, 9 and 10 – original accused Nos. 1, 3, 4, 5, 7, 9 and 10. However, the same shall be without prejudice to the rights and contentions of the original complainant against the accused Nos.6 and 8. The learned trial court to proceed further with the original accused Nos.6 and 8 in accordance with law and on merits, without in any way being influenced by the present order. However, the same shall be without prejudice to the rights and contentions of the original complainant against the accused Nos.6 and 8. The learned trial court to proceed further with the original accused Nos.6 and 8 in accordance with law and on merits, without in any way being influenced by the present order. Rule is made absolute QUA petitioner Nos.1, 3, 4, 5, 7, 9 and 10 – original accused Nos. 1, 3, 4, 5, 7, 9 and 10 and Rule is discharged QUA petitioner Nos.6 and 8 - original accused Nos. 6 and 8. Petition partly allowed.