No complaint under Section 138 is maintainable against the person, who has neither issued the cheque nor the same was issued from her account.

Criminal Misc.M.No.32786 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. -M No.32786 of 2010
Date of Decision : December 16, 2011
Navjot Kaur …Petitioner
Versus
INSCOL …Respondent
CORAM; HON’BLE MR.JUSTICE ALOK SINGH
1. Whether Reporters of local news papers may be
allowed to see judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the
Digest?
Present: Mr. Rajiv Joshi, Advocate
for the petitioner.
Mr.Rakesh Bhatia, Advocate
for the respondent.
Alok Singh, J.
The short question involved in the present case is as to
whether a person, who is neither a signatory of the cheque nor has
issued cheque, can be made accused in a complaint under Section
138 of the Negotiable Instruments Act.
The brief facts of the case are that respondent
(complainant) has filed complaint against Avtar Singh, father as
well against Navjot Kaur daughter of Avtar Singh alleging therein
that accused No.2-Navjot Kaur got admission in Foreign Nursing
Course; to discharge the liability of Navjot Kaur-accused No.2,Criminal Misc.M.No.32786 of 2010 2
accused No.1, father of accused No.2 has issued one account payee
cheque No.173472 from S.B.Account No.134400 dated 16.9.2007
for a sum of Rs.1,25,000/- drawn on Punjab National Bank, D.A.V.
College, Jalandhar; on the presentation, cheque was dishonoured
on account of insufficient funds on 22.9.2007; a legal notice was
issued on 20.10.2007. However, despite of the service, payment
was not made within the stipulated period, therefore, complaint
was filed before the learned Magistrate on 27.11.2007.
I have heard learned counsel for the parties and have
carefully perused the record. Section 138 of the Negotiable
Instruments Act reads as under:-
“138. Dishonour of cheque for insuf iciency, 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 insuf icient 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
of ence 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 shallCriminal Misc.M.No.32786 of 2010 3
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 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.”
From the perusal of Section 138, I have no hesitation
to hold that complaint under Section 138 can only be filed against
the person, who has drawn the cheque on an account maintained by
him with the Banker for payment of any amount of money. Since
petitioner is neither maintaining the account nor has issued the
cheque under her signatures, therefore, no complaint under Section
138 of the Negotiable Instruments Act is legally maintainable
against the petitioner-accused No.1. daughter of accused No.2.
Learned counsel for the complainant has vehemently
argued that since cheque was issued by the father of the petitioner
to discharge the liability of the petitioner in her presence and
petitioner has assured that cheque shall be honoured, therefore,Criminal Misc.M.No.32786 of 2010 4
complaint under Section 138 of the Negotiable Instruments Act
can be filed against her as well.
I am not inclined to accept this arguments. No
complaint under Section 138 is maintainable against the person,
who has neither issued the cheque nor the same was issued from
her account. Therefore, present petition is allowed. Complaint
against the petitioner stands quashed. However, trial Court shall
proceed against accused No.1-Avtar Singh only.
(Alok Singh)
December 16, 2011 Judge

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