TaxTMI 
TaxTMI 
2022 (5) TMI 746
X X X X Extracts X X X X
X X X X Extracts X X X X
....Police Bazar, Shillong also along with the Branch Manager of the said bank. The grievance is directed against a common order dated 16.12.2020, passed by the Court of the learned Judicial Magistrate First Class, (JMFC) Shillong which is impugned in both the petitions, it is therefore deemed fit and convenient that the two petitions may be taken up together and to be disposed of by this common judgment and order. 2. The respondent No. 1 has filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 primarily against the respondent No. 2 for an alleged case of cheque bouncing, which cheque for Rs. 1,00,000/- (Rupees one lakh) only dated 27.10.2020 bearing No. 000014 drawn on HDFC Bank, Mawlai Nonglum B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arned counsel for the petitioner who has submitted that on admission of the petitions, this Court has caused notice to be issued upon the respondents therein, however inspite of being served with the notice, the respondents have failed to appear before this Court on several dates and accordingly on prayer made, this Court vide order dated 29.04.2022 has directed that these matters shall be heard ex-parte as against the respondents herein. 8. Mr. Smith has further submitted that the dispute involved is with regard to the alleged dishonour of a cheque said to have been issued by the respondent No. 2 i.e Shri Rohit Kachari in favour of the respondent No.1 Shri Baklai Siej. However, on the cheque being presented at the bank on 03.11.2020, it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aid complaint have been noted above. 11. At this juncture, it would be proper to look at the provision of Section 138 N.I. Act, the same reads as follows: - "138. Dishonour of cheque for insufficiency, 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 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 d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ciency of funds or that it exceeds that amount arranged to be paid from that account by an agreement made by the bank. (iv) that the payee makes a demand for the payment of the money from the drawer of the said cheque, such demand being made within fifteen days from the date that said cheque was refused to be honoured; and (v) that the drawer fails to make payment to the payee within fifteen days from the date of receipt of the notice. 13. From the above, what can be observed is that for an offence under Section 138 to be made out a cheque has to be issued by the account holder under his name and signature. It is clear that only the holder of the account on which the cheque is drawn can be made liable and such culpabili....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the learned Judicial Magistrate First Class, Shillong has failed to appreciate the facts and the provisions of law and has unnecessarily put the petitioner to great hardship by issuing of process. In this regard the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors: (1998) 5 SCC 749 at paragraph 28 has observed as follows: - "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has appli....