Single Bench BEFORE THE HIGH COURT QFCHHAmSGARH AT BILASPUR (CHHATTISGARH) Cr.M.P. No. / 6 2—of 2011 APPLICANT : Ashok Tiwari, S/o Jagannath ^: "^ ^- 1\>?"E>^ Tiwari, aged about 48 years, ^* ^;•';'., .. '^ ^K,^ '., ,^ R/° vailsali Nagar, Srikant -^v^< ^ , • ^g9>^<$ Verma Marg, Bilaspur (C.G.) vmisus RESPONDENT R^r^ S>^-'t-<^ Bisahua, S/o Gokul Sahu, aged A about 62 years, R/o Village- Narayanpur, Tahsil Nawagarh, Distt. Durg (C.G.) APPLICATION UNDER SECTION 482 OF THE CMMINAL PROCEDUE CODE FOR QUASHING REGISTRATION OF CRIMINAL CASE N0. 1021/2010 IS PENDING IN THE COURT OF A.C.J.M. BEMETARA. DISTT. DURG (C.G.). M^- '(i «. .W .y. X^" \^^€^^' HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Cr.M.P.No.162/2011 Applicant Respondent Ashok Tiwari Versus Bisahua Ram Sahu Petition under Section 482 of the Code pf Criminal Procedure Present:- Shri Anil Pandey, counsel for the petitioner. Shri P. P. Sahu,counsel for the respondent. ORAL ORDER (Passedon 23-11-2011) With the consent of learned counsel for the parties, the matter is heard finally. 2. This petition has been filed by the petitioner under Section 482 of the Cr.P.C. for quashing Criminal Case No. 1021/2010 and all criminal proceedings pending in the Court of Additional Chief Judicial Magistrate, Bemetara, District Durg. 3. Brief facts of the case are that the respondent filed a complaint in the Court ofAdditional Chief Judicial Magistrate, Bemetara, under Section 138 ofthe Negotiable Instruments Act, 1881 (In short "the Act of 1881") alleging that towards discharge of liability of payment against supply of construction material, a cheque dated 22-05-2009 for an amount of Rs.2 Lakh drawn on Punjab National Bank, was given to the complainant by the petitioner. The cheque was presented in the Allahabad Bank, the Banker of the complainant, on 26-05-2009. The cheque was dishonoured and a memo dated 05-06-2009 of the Punjab National Bank was sent informing that the amount is insufficient. When this was informed to the petitioner, the petitioner again assured the complainant that if the cheque is again presented after two months, the same shall be honoured. s Thereafter, the cheque was again presented on 24-08-2009, but thecheque was again dishonoured on account of insufficient funds. Thereafter, a registered demandnotice dated 07-09-2009 was given but the petitioner failed to pay the amount, even after receipt of notice, and thereby, committed offence under Section 138 of the Act of 1881 as also under Section 420 of the IPC. On the complaint so filed, the learned Magistrate examined the complainant on oath and after perusal of the preliminary statements, cognizance was taken by registering offence under Section 138 of the Act of 1881 against the petitioner and summons was also issued. 4. Learned counsel for the petitioner, in support of his prayer for quashing criminal proceedings, contended that the initiation of criminal proceedjngs against the petitioner is abuse of the process of law, because under the statutory scheme of Section 138 of the Act of 1881, criminal liability could be fastened only on the person, who has drawn the cheque on an account maintained by him with a banker for payment of money to another person. He further submitted that in the complaint, it has been vaguely stated that the cheque was given by the petitioner, without making any specific statement that the cheque was issued by the petitioner. Referring to Annexure A-3, copy of cheque dated 25-05-2009, it has been submitted that the cheque was not issued by the petitioner, but it was issued by one Shri P.K. Kannan, who is the Proprietorof M/s Vijaya Construction and the cheque was drawn by Shri Kannan, on an account maintained by him with his own banker, as reflected from the copy of the cheque. Referring to the certificate issued by the Banker placed on record as Annexure A-4, learned counsel submitted that the concerned account, on which, the cheque was drawn, is that of Shri P. K. Kannan. Learned counsel for the petitioner further submits that as the cheque was issued by Shri P. K. Kannan, on an account maintained by him with Punjab National Bank, which is alleged to be dishonoured for want of sufficient fund, the petitioner could not be prosecuted, as there is no criminal liability fastened on the petitioner, even if the allegation regarding dishonour of cheque for want of sufficient fund is accepted. He submits that merely because, the petitioner was an associate and worker of M/s Vijaya Construction and engaged as a Petty Contractor and even if it is assumed that the cheque was handed over by the petitioner to the complainant, the petitioner could not be subjected to prosecution for commission of offence under Section 138 of the Act of 1881, because the criminal liability could be fastened on the person, who has actually drawn the cheque, on an account maintained by him, for payment of any amount of money to another person. 5. On the other hand, learned counsel for the respondent submitted that the petitioner was the person, who was directly dealing with the work of construction and material was taken by him in his capacity as Petty Contractor of M/s Vijaya Construction. He further submits thatthough, cheque was drawn by Shri P. K. Kannan, Proprietor of M/s Vijaya Construction, the cheque was handed over to the complainant by the petitioner, and therefore, the petitioner is also responsible. It is further submitted that in the complaint, it has been alleged that the cheque was given by the petitioner, which was presented in the bank and the same was dishonoured and even after giving of demand notice, no payment was made by the petitioner, and therefore, on the face of siich allegations, a prima facie case is made out against the petitioner. 6. Though, in the complaint, jt has been stated that the cheque dated 22-05- 2009 for an amount of Rs.2 Lakh was given by the petitioner to the complainant, from the pleadings and submission made by learned counsel for the parties, it has not been disputed that the disputed cheque was signed by Shri Kannan. Learned counsel for the respondent could not dispute this position. In fact, in para 11 of the reply, it has been admitted that the cheque was signed by Shri Kannan.A perusat of the copy of cheque shows that the cheque was drawn on the account of Shri Kannan, as is reflected from certificate of Bank (Annexure A- ~a>, ^;. '; •'^f-.-K—-rs&i!y p-' 4). Therefore, it is undisputed position that the cheque was issued by Shri Kannan for M/s Vijaya Construction and the same was drawn on an account maintained by him in Punjab National Bank. It is this cheque, which is alleged to have been dishonoured, for want of sufficient funds. The allegations against the petitioner are that he was a person, who was dealing with the transaction of supply of material and had played a role in the matter of part payment and the concerned cheque was handed over by the petitioner to the complainant. 7. Dishonour of cheque on insufficiency of funds in the account has been declared to be an offence under Section 138 of the Act of 1881. The provision contained in Section 138 of the Act of 1881 read out that where any cheque drawn by a person on an account maintained by him for payment of any amount of money to another person towards discharge in whole or in part of any debt or 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 the 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. 8. The word "such person" mentioned in Section 138 mean and refer to the person, who has actually drawn the cheque on an account maintained by him for payment of any amount of money to another person. The legislature, therefore, intends to make liable for offence under Section 138 of the Act of 1881, one who has issued the cheque. The allegation contained in the complaint and the examination on oath of the complainant do not reveal that there is an allegation of commission of offence by any Company or Firm nor is there any allegation in the complaint that the petitioner is either Director or Partner, so as to attract the '<<-^..il\ ', k 'ff'^i \ %fe.^/^? provisions contained in Section 141 of the Act of 1881. There is no other provision in the Act, much less, Section 138, which even remotely suggests that any person, in addition to one who has actually issued the cheque shall also be liable for commission of offence under Section 138 of the Act of 1881, in the event of dishonour of cheque in the circumstances mentioned in the provision. It is well settled that a penal statue has to be strictly construed and such provisions could not be liberally construed, so as to extend or enlarge the scope and ambit, which is not specifically expressed in the provision. True it is that there are allegations against the petitioner that he was involved in the process of taking material and also handed over the cheque to the complainant and had also assured for payment and certain part payments were made by him. On such allegations relating to role played by the petitioner, even if it is accepted, would not make the petitioner liable for commission of offence under Section 138 of the Act of 1881 for the reasons mentioned above. It has to be noted that the Court below has taken cognizance of offence under Section 138 of the Act of 1881only and no offence under Section 420 of the IPC has been registered against the petitioner. 9. . Copy of the disputed cheque has been placed on record, which clearly shows that it was issued by Shri Kannan for M/s Vijaya Construction and drawn on his own account maintained by him in the Punjab National Bank. In the reply, it has not been disputed and rather admitted that the cheque was issued by Shri Kannan, but initiation of prosecution against the petitioner is supported on the submission that as the petitioner was involved in the whole transaction and it was his liability, and therefore, the petitioner was liable for being prosecuted. In the light of examination of the statutory scheme engrafted under Section 138 & 141 of the Act of 1881, the submission made by learned counsel for the respondent has to be rejected. ^, 10. In the ultimate analysis, it is found that initiation of registration of offence under Section 138 of the Act of 1881, subjecting the petitioner to prosecution by setting criminal law in motion against him, is abuse of the process of law and interference by this Court has become imperative to prevent abuse of the process of law. 11. Accordingly, this petition is allowed. The criminal proceedings instituted against the petitioner in Criminal Case No. 1021/2010 pending in the Court of Additional Chief Judicial Magistrate, Bemetara, District Durg (Bisahua Ram Sahu vs. Ashok Tiwari) are hereby quashed. The learned Magistrate shall pass all consequential orders in the matter. Sd/- ManindraMohan Shrivastava Judge Tumane