1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1856 OF 2010 Ashok s/o Ramswarup Juneja Vrs. Rajesh s/o Tulsidas Patel and one. ................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... CORAM : R.G. KETKAR, J. DATED : 2nd DECEMBER, 2010. Heard Shri M.A. Deshpande, learned counsel for the applicant. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant has challenged the order dated 19/04/2010, below Exh. 1, so also, the judgment and order dated 21/09/2010 below Exh.8 in Summary Criminal Case no. 87/2010 passed by the learned 22nd Joint Civil Judge, (J.D.) and Special Court under section 138 of Negotiable Instruments Act, Nagpur. By order dated 19/04/2010, the learned Magistrate issued process for the offence punishable under section 138 of the Act only against the non-applicant no.1-Rajesh Tulsibhai Patel. The applicant, therefore, took out application Exh.8 on 21/08/2010 praying for issuance of summons against non-applicant no.2/accused no.2. By order dated 21/09/2010, the learned Magistrate rejected the application. 2 Shri Deshpande contended that the non-applicants have issued receipt dated 31st July, 2009 which is styled as agreement where under the non-applicants took responsibility in paying the amount of Rs. 4,00,000/- in case of bouncing of the cheque. He submitted that though the cheque was issued by non-applicant no.1, in view of the agreement dated 31st July, 2009, both the non-applicants are liable to make good the amount and consequently even the non-applicant no.2 committed offence under section 138 of the Act. I have perused the agreement dated 31st July, 2009, as also considered the submissions made by the learned counsel. Section 7 of the Act defines “Drawer”. It reads as under:- “Drawer – The maker of a bill of exchange or cheque is called the “drawer”. Section 138 of the 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 the bank, such person shall be deemed to have been 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 3 cheque, or with both: Provided that nothing contained in this section shall apply unless --- (a) the cheque has been presented to the bank with in 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. Explanation.-- For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.” A conjoint reading of sections 7 and 138 of the Act leads to irresistible conclusion that subject to fulfillment of the conditions prescribed in clauses (a), (b) and (c) of Section 138 of the Act, if the drawer of the cheque fails to make payment, then the offence is deemed to have been committed. In the instant case, there is nothing to show that the non-applicant no. 2 is the drawer of the cheque attracting section 138 of the Act. In the light of the above, I do not find that the courts 4 below committed any error in declining to issue process against the non-applicant no. 2. Hence, the application is devoid of substance and the same is rejected. JUDGE Hirekhan