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38.
% 09.12.2009
Present: Mr. S.K. Pruthi, Adv. for the Petitioner.
Ms. Santosh Kohli, APP for the State.
+ Crl.M.A. No. 5054/2009
Allowed, subject to all just exceptions. Certified copies of documents be made available as and when it is available.
Crl.M.A.5054/2009 stands disposed of.
Crl.M.C. No.1405/2009 and Crl.M.A. No. 5053/2009
This is a petition under Section 482 of the Code of Criminal
Procedure for quashing the order dated 20th February, 2009 whereby the petitioner was summoned to face trial under Section 138 of
Negotiable Instruments Act.
The case of Respondent No. 2 in the complaint is that the petitioner had agreed to sell one shop to him for a consideration of
Rs.62,50,000/- and had executed certain documents such as GPA, Will, etc. in his favour. It has been further alleged in the complaint that though the petitioner had been promising to deliver possession of the aforesaid property to him, he instead of doing that, sold that property to one Anita Dawar and handed over the possession to her. It has been further alleged that when there was a hot exchange of words between complainant and petitioner, his brother Shri Madan Mohan
2009:DHC:5302
Kanodia intervened in the matter and agreed to return the whole amount which the complainant had paid to the petitioner. A cheque for Rs.5,00,000/- is alleged to have been issued by the petitioner to the complainant. When presented to the bank, the cheque was dishonoured with remarks “No Such Account”. The amount of the cheque having not been paid, despite notice of demand, the present complaint was filed by Respondent No. 2. The learned counsel for the
Respondent No. 2 concedes that cheque in question has been drawn by Shri Madan Mohan Kanodia, brother of the petitioner and not by the petitioner.
Section 138 of Negotiable Instruments Act, to the extent it is relevant, provides that where a cheque drawn by a person and issued towards 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 available in the bank account being insufficient to honour the cheque or on the ground that the amount exceeds the arrangement made to be paid from that account, such person shall be deemed to have committed an offence. Thus, it is the drawer of cheque who is liable to punishment under Section 138 of Negotiable Instruments Act in case a cheque issued by him towards discharge of whole or part of any debt or liability is dishonoured, for the reasons stated in Section
138 of Negotiable Instruments Act. As defined in Section 7 of
Negotiable Instruments Act, the maker of a cheque is called the
„drawer‟.
Since admittedly, cheque in question was drawn by Shri Madan
Mohan Kanodia and not by the petitioner, no offence under Section
138 of Negotiable Instruments Act has been made out against him on account of dishonour of the cheque issued by his brother.
Since, no offence under Section 138 of Negotiable Instruments
Act is made out from the admitted allegations, the proceedings initiated by the respondent against the petitioner under Section 138 of Negotiable Instruments Act cannot continue further and the same are hereby quashed.
V.K.JAIN, J
DECEMBER 09, 2009 bg
% 09.12.2009
Present: Mr. S.K. Pruthi, Adv. for the Petitioner.
Ms. Santosh Kohli, APP for the State.
+ Crl.M.A. No. 5054/2009
Allowed, subject to all just exceptions. Certified copies of documents be made available as and when it is available.
Crl.M.A.5054/2009 stands disposed of.
Crl.M.C. No.1405/2009 and Crl.M.A. No. 5053/2009
This is a petition under Section 482 of the Code of Criminal
Procedure for quashing the order dated 20th February, 2009 whereby the petitioner was summoned to face trial under Section 138 of
Negotiable Instruments Act.
The case of Respondent No. 2 in the complaint is that the petitioner had agreed to sell one shop to him for a consideration of
Rs.62,50,000/- and had executed certain documents such as GPA, Will, etc. in his favour. It has been further alleged in the complaint that though the petitioner had been promising to deliver possession of the aforesaid property to him, he instead of doing that, sold that property to one Anita Dawar and handed over the possession to her. It has been further alleged that when there was a hot exchange of words between complainant and petitioner, his brother Shri Madan Mohan
2009:DHC:5302
Kanodia intervened in the matter and agreed to return the whole amount which the complainant had paid to the petitioner. A cheque for Rs.5,00,000/- is alleged to have been issued by the petitioner to the complainant. When presented to the bank, the cheque was dishonoured with remarks “No Such Account”. The amount of the cheque having not been paid, despite notice of demand, the present complaint was filed by Respondent No. 2. The learned counsel for the
Respondent No. 2 concedes that cheque in question has been drawn by Shri Madan Mohan Kanodia, brother of the petitioner and not by the petitioner.
Section 138 of Negotiable Instruments Act, to the extent it is relevant, provides that where a cheque drawn by a person and issued towards 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 available in the bank account being insufficient to honour the cheque or on the ground that the amount exceeds the arrangement made to be paid from that account, such person shall be deemed to have committed an offence. Thus, it is the drawer of cheque who is liable to punishment under Section 138 of Negotiable Instruments Act in case a cheque issued by him towards discharge of whole or part of any debt or liability is dishonoured, for the reasons stated in Section
138 of Negotiable Instruments Act. As defined in Section 7 of
Negotiable Instruments Act, the maker of a cheque is called the
„drawer‟.
Since admittedly, cheque in question was drawn by Shri Madan
Mohan Kanodia and not by the petitioner, no offence under Section
138 of Negotiable Instruments Act has been made out against him on account of dishonour of the cheque issued by his brother.
Since, no offence under Section 138 of Negotiable Instruments
Act is made out from the admitted allegations, the proceedings initiated by the respondent against the petitioner under Section 138 of Negotiable Instruments Act cannot continue further and the same are hereby quashed.
V.K.JAIN, J
DECEMBER 09, 2009 bg
JUDGMENT