2022 (2) TMI 354

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....digul, by the respondent for the offence under Section 138 r/w 142 of the Negotiable Instruments Act. 3. The case of the respondent/complainant is that the petitioner and the respondent are family friends and due to that acquaintance, the petitioner borrowed a sum of Rs. 3,00,000/- from the respondent on 10.12.2017 to settle her sundry debts agreeing to repay the said amount within a period of one month, that the petitioner has issued a cheque bearing No. 193277 to the respondent as security, that the respondent as per the instructions of the petitioner, presented the cheque for collection on 08.01.2018, but the same was returned as the signature of the drawer differs, that the respondent has sent a legal notice dated 22.01.2018 demanding ....

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....nsel for the petitioner would further submit that even in the complaint, the respondent has specifically alleged that the cheque was only belonging to the petitioner and that with an intention to cheat the respondent, she had purposely put a different signature in the cheque in question. The learned Counsel for the petitioner would submit that in the bank statement given by the Indian Overseas Bank, the petitioner's husband Saravanavel is shown as the account holder and that the cheque bearing No. 193277 was presented for collection in the said account and the same was returned and that therefore, since the cheque in question is not belonging to the petitioner and she is not the drawer of the cheque, the question of mulcting the liabili....

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.... has specifically held that the drawer of the cheque alone can be prosecuted for the offence under Section 138 of the Negotiable Instruments Act and the relevant passage is extracted hereunder: "7. On a fair reading of Section 138 of the NI Act, before a person can be prosecuted, the following conditions are required to be satisfied: i) that the cheque is drawn by a person and on an account maintained by him with a banker; ii) for the 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; and iii) the said cheque 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....

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....n 138 of the Negotiable Instruments Act does not speak about the joint liability and even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque cannot be prosecuted for the offence under Section 138 of the Negotiable Instruments Act. Moreover, as rightly contended by the learned Counsel for the petitioner, the respondent in his complaint has not averred that the petitioner had committed an offence of cheating under Section 420 I.P.C., and admittedly, the learned Magistrate has taken cognizance of the case only for the offence under Section 138 r/w 142 of the Negotiable Instruments Act. Since the cheque in question was not drawn by the petitioner on an account maintained by her, th....