CRM No. M-26424 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-26424 of 2009 Date of Decision : December 09, 2011 Krishna Wanti and others .... PETITIONERS Vs. Ashit Chadha and others ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Sandeep Jain, Advocate, for the petitioners. Mr. Mahesh Gupta, Advocate, for the respondents. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in this petition is for quashing of complaint bearing No. 60/2 dated 15.04.2009 (Annexure P-1) filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881') and for quashing of the summoning order dated 09.05.2009 (Annexure P-2) passed by the Judicial Magistrate Ist Class, Panchkula qua the petitioners and all consequential CRM No. M-26424 of 2009 2 proceedings arising therefrom. It is the contention of the counsel for the petitioners that the cheque, which had bounced, bearing No. 609006 dated 01.01.2009 was signed by Rakesh Kapoor-respondent No. 2. Petitioners have nothing to do with the transaction in question nor was the cheque issued by the petitioners. Referring to the complaint, he contends that the allegations are that the complainant Mr. Ashit Chadha contacted accused No. 1 i.e. Rakesh Kapoor and accused No. 1 disclosed to the complainant regarding the agreement to sell, which has been entered into between accused No. 1 and accused Nos. 2 to 5, out of which these three petitioners were accused Nos. 2, 3 and 4 along with 5th and 6th accused and he further assured that the sale deed and registry of the above-mentioned plot would be directly executed through the original owner i.e. accused Nos. 2 to 5 in favour of the complainant. This clearly indicates that the petitioners were not involved in the transaction. Complainant had given to accused No. 1 an amount of ` 12,50,000/- as full and final payment of the plot in question which, when was not given effect to, a cheque amounting to ` 12,50,000/- was drawn by accused No. 1 Rakesh Kapoor and handed over to the complainant. The only allegation against the petitioners is that they had assured and promised that the cheque would be encashed and they would pay interest on the amount. He contends that in the light of the provisions of Section 138 of the Act, 1881, the liability would only be of a drawer of the cheque i.e. Rakesh Kapoor and not of the CRM No. M-26424 of 2009 3 petitioners. Accordingly, he prays that the present petition be allowed qua the petitioners by quashing the complaint and the summoning order dated 09.05.2009. On the other hand, counsel for the respondents submits that the land belongs to the petitioners along with accused No. 5. They had, when the cheque was issued by Rakesh Kapoor, assured and promised to the complainant that they would give bank rate interest on the amount of the cheque. The cheque was dishonored due to insufficiency of funds and, therefore, the proceedings against the petitioners and others have been initiated under Section 138 of the Act, 1881, correctly after complying with the mandate of the said Section and, therefore, the present petition deserves to be dismissed. I have heard the counsel for the parties and have gone through the records of the case. Section 138 of the Act, 1881, deals with the cases where a cheque is dishonored for various reasons mentioned therein. The liability is that of the person who had drawn the cheque primarily except where there are exceptions provided under the Act itself. A perusal of the provisions of Section 138 of the Act, 1881 clearly spells out that where a cheque is dishonored and when it is not a joint account or the persons have nothing to do with the amount in question, the liability would be limited to the person who had drawn the cheque. As per the assertions made in the complaint (Annexure P- 1), it is apparent that the cheque was drawn by Mr. Rakesh Kapoor CRM No. M-26424 of 2009 4 where an amount was received by him from the complainant amounting to ` 12,50,000/- for a plot, of which petitioners were joint owners with another person. It is not even the case of the complainant that this amount was ever handed over to the petitioners or that they had anything to do with the issuance of the cheque by Rakesh Kapoor to the complainant. What has been mentioned in para 8 of the complaint is that accused Nos. 1 to 6 also promised the complainant that they would give bank interest on the above-mentioned amount. This clearly shows that the cheque was issued by accused No. 1 i.e. Rakesh Kapoor in his personal capacity and since provisions under Section 138 of the Act, 1881, create an offence qua the person who had drawn the cheque, it would be Rakesh Kapoor who would be liable for the dishonor of the cheque and not the petitioners. In view of the above, the complaint and the summoning order qua the petitioners only deserve to be quashed. The present petition is allowed. Complaint No. 60/2 dated 15.04.2009 (Annexure P-1) and the summoning order dated 09.05.2009 (Annexure P-2) passed by the Judicial Magistrate Ist Class, Panchkula and all consequential proceedings arising therefrom, are hereby quashed qua the petitioners only. (AUGUSTINE GEORGE MASIH ) December 09, 2011 JUDGE pj