1. This petition is filed under Section 482 Cr. P.C to quash the proceedings in CC No. 436 of 1995 on the file of III Addl. Judl. First Class Magistrate, Rajahmundry.
2. The first respondent filed a private complaint against the petitioner A3 and others alleging that the Accused 1 and 2 constitute a Joint Hindu Family and A1 was the Manager of the Joint Hindu Family and the petitioner herein is the wife of A1. It is alleged that the Accused 1 to 3 approached the complainant and obtained financial accommodation of Rs. 1,50,000/- and purchased a car bearing No. AIK-969 in the name of the petitioner A3 and A1 issued post dated cheque on 1-2-1995 for Rs. 2,56,300/- and the cheque was presented and it was returned dishonoured and 8-2-95. Then he issued a notice on 12-2-1995 to A1 and A3 demanding to pay the amount within fifteen days and the accused received the notice on 14-2-1995 and failed to pay the amount and liable for punishment under Section 138 of the Act. The learned Magistrate originally dismissed the complaint without recording the sworn statement against A2 and A3. Against the said orders, the complainant filed a revision before the Sessions Judge in Crl. Rev. Petition No. 65 of 1995 and the said revision was allowed directing the Magistrate to record the sworn statement and then pass appropriate orders.
3. The learned Magistrate after recording sworn statement took the case on file under Section 138 and 142 of the Negotiable Instruments Act.
4. Now the petitioner, who is A3 filed this petition to quash the proceedings.
5. The learned Counsel for the petitioner submitted that the petitioner has not issued the cheque and admittedly the cheque was issued by her husband, A1 and hence, the prosecution against the petitioner is not maintainable under Section 138 of the Negotiable Instruments Act. She further submitted that the offence contemplated under Section 138 of the Act is only against drawer of the cheque alone, but not others.
6. But the respondent Counsel submitted that A3 is wife of A1, who issued the cheque and the car was purchased in her name after obtaining the loan from the complainant and the cheque was issued to discharge the said liability, and hence, the prosecution is maintainable.
7. It is useful to extract Section 138 of the Negotiable Instruments Act:
“… Where any cheque drawn by a person on an account maintained by him with a banker for payment 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 the 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 extend to one year, 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 holder 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 fifteen days of the receipt of information by him from the bank regard 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”
8. Therefore, it is to be seen from the perusal of the above provision of law that if the cheque was drawn by a person on an account maintained by him with the banker for payment of money to another person from out of that account, for the discharge, in whole or in part of any debt or other liability was 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 be guilty of the commission of offence subject to the other conditions mentioned in proviso to Section 138 of the Negotiable Instruments Act and the other provisions mentioned in Chapter XVII of the Negotiable Instruments Act. If the person committing the offence under Section 138 of the Act is a Company, then the person incharge of the company, etc. as well as the company shall be deemed guilty of the offence as provided under Section 141 of the Act. It is settled principle of law that penal provisions should be construed strictly and the emphasis is on the words “such person”. It is manifest from the expression of the words used in Section 138 of the Act “such person shall be deemed to have committed the offence” relate to the person who has drawn the cheque in favour of the payee and if the said cheque is returned unpaid on account of the conditions mentioned under Section 138 of the Act, such person alone is liable but not others except in the contingencies mentioned under Section 141 of the Act.
9. Admittedly, in this case, the petitioner herein has not issued the cheque and her husband, A1, issued the cheque in discharge of the loan obtained from the complainant for purchase of car. Simply because the car was purchased in the name of the petitioner, that does not fasten the liability for punishment under Section 138 of the Act, as the said provision contemplates of punishment only against the drawer of the cheque but not others. Therefore, the proceedings against the petitioner for an offence under Section 138 of the Negotiable Instruments Act are not maintainable and liable to be quashed.
10. In the result, the petition is allowed and the proceedings in CC No. 436/1995 on the file of the III Addl. Judicial Magistrate of First Class, Rajahmundry insofar as the petitioner is concerned, are quashed and the learned Magistrate is directed to proceed with the case in accordance with law against the other accused.
Negotiable Instruments Act.