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 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 deemed to have committed an offence 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 shall Criminal 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 BB