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2016 DIGILAW 470 (MP)

Rafat Anees v. Bano Bi

2016-06-20

S.K.PALO

body2016
ORDER : S.K. Palo, J. 1. Respondent No. 1 Bano Bi filed a complaint case under section 138 of the Negotiable Instruments Act against the petitioner and the respondent No. 2 Rehan Khan; alleging that certain land was sold by respondent No. 1 in favour of the petitioner in which consideration of Rs. 4 Lakhs was given to respondent No. 1 by cheque dated 25-3-2009 of HDFC Bank Ltd. signed by the respondent No. 2. The said cheque was dishonoured. Hence, the criminal complaint case No. 1418/2010 was registered before the Additional Chief Judicial Magistrate, Bhopal on 8-2-2010 against the petitioner and the respondent No. 2. 2. The petitioner challenged the legality and propriety of the said order of taking cognizance of offence by filing Criminal Revision No. 48/2013 on the ground that neither the cheque was signed by the petitioner nor the criminal case could be proceeded against the petitioner. The said revision was dismissed by 11th Additional Sessions Judge, Bhopal vide order dated 28-1-2014 on the ground that once cognizance has been taken in a summons trial case, learned Judicial Magistrate is not empowered to discharge the accused. Hence, the order dated 8-2-2010 does not suffer from any illegality or irregularity. 3. The petitioner preferred this petition under section 482 of the Code of Criminal Procedure for quashment of the order passed in Criminal Case No. 1418/2010 pending before the Judicial Magistrate First Class, Bhopal. 4. On behalf of the petitioner, learned counsel Mr. Ashok Lalwani has vehemently argued that respondent No. 2 is a property dealer has issued the questioned cheque in favour of the respondent No. 1 on 25-3-2009. The applicant has neither issued the cheque nor signed the same. It is further contented that petitioner not being the signatory of the cheque, cannot be prosecuted for offence under section 138 of the Negotiable Instruments Act. He fortified his view by placing reliance on the decision rendered by the Apex Court in Mainuddin Abdul Sattar Shaikh v. Vijay D. Salvi, 2016(2) M.P.L.J. 266. 5. In Mainuddin Abdul Sattar Shaikh (supra) the Apex Court while dealing with the essentials to attract liability under section 138 of the Negotiable Instruments Act has held that, "Person who draws a cheque on an account maintained by him, for paying payee, alone attracts liability. " 6. 5. In Mainuddin Abdul Sattar Shaikh (supra) the Apex Court while dealing with the essentials to attract liability under section 138 of the Negotiable Instruments Act has held that, "Person who draws a cheque on an account maintained by him, for paying payee, alone attracts liability. " 6. In the present case, it is admitted fact that the drawer of the cheque was the respondent No. 2, who had drawn the cheque bearing number "224385" for Rs. 4 Lakhs in the bank account maintained by him in HDFC Bank, Bharat Talkies, Hamidia Road Branch, Bhopal, towards the consideration of the sale. Therefore, the respondent No. 2 was the drawer of the cheque. 7. The Supreme Court in the case of P.J. Agro Tech Limited and others v. Water Base Ltd., (2010) 12 SCC 146 has aptly held that: "An action in respect of a criminal or a quasi-criminal provisions 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 commission of such offence." 8. Therefore, the scope of section 138 of the Negotiable Instruments Act can be held that, it is very clear that in order to attract the provision, the following essentials have to met for attracting a liability under section 138 of the Act. The person who is to be made liable should be the drawer of the cheque and should have drawn the 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 discharge in whole or part, of any debt or other liability. 9. Thus, in the light of the above legal position, this Court is of the view that the respondent No. 2 has signed and issued the cheque is only liable under section 138 of the Act, even though the sale deed was executed in favour of the petitioner. 10. Accordingly, the petition under section 482 of the Code of Criminal Procedure is allowed. The proceeding initiated in Criminal Complaint Case No. 1418/2010, so far as it pertains to the petitioner, is hereby quashed.