Section 138 liability is confined to the drawer or authorised signatory; a non-signatory cannot be summoned without proved authority.

Criminal liability under Section 138 of the Negotiable Instruments Act attaches to the drawer or an authorised signatory of the cheque. A sole proprietorship has no separate legal existence, but a non-signatory cannot be summoned unless authority to sign on the drawer's behalf is pleaded and shown. Where the cheque is dishonoured for signature mismatch and no authority is established, the ingredients of Section 138 are not satisfied against that person. Civil recovery may still be available, but criminal prosecution under Section 138 cannot proceed on these facts.

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Issues: Whether a sole proprietor could be summoned in a complaint under Section 138 of the Negotiable Instruments Act, 1881 when the dishonoured cheque was not signed by the proprietor but by a third person said to be unauthorised.

Analysis: Section 138 creates liability in relation to the drawer and signatory of the cheque. Although a proprietorship concern has no separate legal existence and proceedings may lie against the sole proprietor, liability under Section 138 cannot be fastened on a person who is not the signatory of the cheque and against whom there is no showing of authority in favour of the person who signed it. The cheque was dishonoured for mismatch of signature, which reinforced the absence of authority. Such a claim may support civil recovery, but it does not satisfy the ingredients of Section 138 for criminal prosecution against a non-signatory third person.

Conclusion: The complaint could not proceed against the petitioner under Section 138 of the Negotiable Instruments Act, 1881, and the summoning order was liable to be set aside.

Final Conclusion: The petition succeeded, the summoning order was quashed, and the complaint was set aside insofar as it related to the petitioner.

Ratio Decidendi: Criminal liability under Section 138 of the Negotiable Instruments Act, 1881 attaches to the drawer or authorised signatory of the cheque, and a non-signatory cannot be summoned in the absence of pleaded and proved authority to sign on behalf of the drawer.

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