* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 324/2007 & Crl.M.A.2725/2009 SUPRADIP DAS ..... Petitioner Through Mr.R.K.Sinha, Advocate. versus STATE & ANR ..... Respondent Through Mr.Ami5 Sharma, APP. CORAM: HON'BLE MR. JUSTICE V.K. JAIN O R D E R % 10.12.2009 This is a petition under Section 482 of the Code of Criminal Procedure, challenging the order dated 4.7.2005, whereby the petitioner was summoned for the offence punishable under Section 138 of Negotiable Instruments Act. A perusal of the complaint filed against the petitioner would show that according to complainant – Texsa India Ltd., which is respondent No.2 in this petition, Respondent No.1 in the complaint who is the proprietor of M/s.Shivani Enterprises, approached the complainant – Company for purchase of goods/material. Accordingly, an account of respondent No.1 was opened with the complainant – Company. A sum of Rs.46,391/- is due from respondent No.1 in respect of the goods purchased by him from the complainant – Company. It has been further alleged in the complaint that respondent No.1 issued two post dated cheques bearing No.629402 dated 3.12.2004 for Rs.9936/- and 629404 dated 6.1.2005 for Rs.15,180/- against the total outstanding liability of Rs.46,391/-. The respondent No.1 sought adjustment of Rs.20,939/- which was granted to him by the complainant. Even after adjustment an amount of Rs.37,330.40 remained payable by respondent No.1 to the complainant – Company. It has been alleged in paragraph 10 of the complaint that on 28.2.2005, respondent No.1 informed the complainant that respondent No.2 - Mr.Supradip Das , who is the petitioner before this Court, while employed with the complainant – Company, had collected an amount of Rs.15,700/- from him giving an assurance that the amount would be deposited with the complainant – Company. However, no such amount was deposited by respondent No.2/petitioner with the complainant – Company. The cheques issued by respondent No.1 when presented to the Bank were returned unpaid by the Bank with remarks ‘insufficient funds’. Since no payment was made despite legal notice, the present complaint was filed seeking summoning of the petitioner for the offences under Negotiable Instruments Act and summoning and trial of respondent No.2/petitioner before this Court under Sections 403, 406 and 420 of IPC. Since cheques in question have beendrawn only by respondent No.1, the petitioner who is respondent No.2 in the complaint, cannot be said to have committed an offence punishable under Section 138 of Negotiable Instruments Act. If an individual, it is only the drawer of the cheque, who is liable for offence under Section 138 of Negotiable Instruments Act, in case a cheque issued towards discharge of a legally enforceable debt or liability when presented to the Bank is dishonoured for want of insufficient funds or on the ground that the amount of cheques exceeds arrangement made for payment from the account of the drawer with the Bank. ‘Drawer’ has been defined to mean the maker of the cheque. Thus, it was only respondent No.1 in the complaint, who committed offence under Section 138 of Negotiable Instruments Act, when the cheques issued by him were dishonoured for want of funds and he failed to make payment despite notice of demand. It appears that the learned Metropolitan Magistrate has mechanically summoned both the respondents without examining the allegations made against the petitioner. Neither any offence under Section 138 of Negotiable Instruments Act is made out against him nor has complainant alleged commission of any such offence by him. Hence, the petitioner cannot be tried for the offence under Section 138 of Negotiable Instruments Act. The impugned order, to the extent that it summons the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act. It shall, however, be opened to the learned Metropolitan Magistrate to pass such order as he may deem appropriate on the other allegations made against him. CRL.M.C. 324/2007 & Crl.M.A.2725/2009 stand disposed of. V.K. JAIN,J DECEMBER 10, 2009/’sn’