2002 (11) TMI 668

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....s security. 3. The petitioner's application for recall of the summoning order was dismissed by the learned ASJ vide order dated 7-5-2002 on the ground that the averments being made by the petitioner cannot be looked into at this stage because it is yet to be proved by the complainant himself that the cheque was returned for insufficient funds and the cheque was given to them in discharge of the liability by the accused persons. 4. I am afraid the observations and the view of the learned ASJ suffers from enormous erroneousness. Section 138 of the Negotiable Instruments Act holds those individuals liable who are drawer of the cheque and no other person. In order to appreciate the contention of the learned counsel sections 138 and 141 ne....

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.... 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 purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." "141. Offence by companies.-(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section ....

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....irs of the company are liable to be prosecuted under section 138. 6. Definition of company shows that the contention of the learned counsel that husband and wife should be deemed as 'Association of individuals' is wholly misconceived as words 'other association of individuals' pertain to only those individuals who are engaged in the same business as a group and not the likes of the petitioner and her husband. Petitioner is not engaged in the business of her husband. She is a Government teacher. The loan was taken by her husband by way of cheque and it was her husband who is the drawer of the cheque which on presentation was dishonoured. Merely because the petitioner accompanied her husband when he took the loan as the complainant happene....