Madhukar Anand, S/O Birendra Kumar Sharma vs The State of Bihar

Heard learned counsel for the petitioner and learned

APP for the State.

The petitioner under Section 482 of the Code of

Criminal procedure (hereinafter referred to as the Cr.P.C .) seeks

quashing of the order dated 05.03.2008, passed by Sri R. Kumar,

learned Judicial Magistrate, 1st Class, Patna City, Patna in C.A. No.

1052/2007, by which a prima facie case under Section 138 of the

Negotiable Instruments Act, 1881 (hereinafter referred to as the Act)

has been found to be true and summons have been issued to the

petitioner and two other co-accused persons after enquiry under

Section 202 Cr.P.C.

The facts of the case is that the opposite party no. 2,

Kumar Anand Ranjan, filed C.A. No. 1052 of 2007 in the court of the

Additional Chief Judicial Magistrate, Patna City, Patna against the

accused including the petitioner alleging therein that he is the dealer

of Maa Shitla Escorts and used to do the business of selling the tractor

on cash and also on credit by furnishing security by the purchaser of

the tractor and its tailor etc. The accused, named in the complaint

petition, including the petitioner visited to his office at Bari Pahari on

17.09.2007 and purchased a tractor and hydraulic tractor amounting to

Rs. 4,48,492. At that time, the accused persons made payment of Rs.

1,25,000/- through bearer cheque and for rest amount of Rs.3,00,000/-

postdated account payee cheque bearing no.476732 dated 17.10.2007

of the Punjab National Bank was issued by the accused, Deepak

Kumar, with assurance to deposit the said amount within a week in his

account. On 17.10.2007, the opposite party no.2 was requested by the

accused persons to meet at his office at 4 P.M. but the accused

persons did not reach there. Thereafter, the cheque bearing no.476732

issued by the accused Deepak Kumar was presented on 23.10.2007 in

the Bank for clearance and the said cheque remained with the Bank

till 26.11.2007 but on 27.11.2007, the said cheque was dishonoured

and returned through Memorandum No.1525 of Dhanarua Punjab

National Bank, Patna, showing insufficient fund and also incomplete

signature of the drawer. It is also alleged by the opposite party no.2

that the accused persons entered into an agreement for purchase of a

Tractor on stamp paper on 17.9.2007, which was signed by the

accused, Madhukar Anand (petitioner), Deepak Kumar and one

Shyam Kishore Sharma. On 7.12.2007, the opposite party no.2

received a notice of the accused through advocate, Sri Arjun Sharma,

acknowledging about the dishonour of the cheque. Thereafter, the

opposite party no.2 on 8.12.2007 replied the notice with a request for

payment of the amount of the cheque but all in vain. As such, the

accused persons, named in the complaint petition, including the

petitioner under conspiracy cheated the opposite party no.2 to the tune

of Rs.3,00,000/- by issuing the cheque without sufficient money in the

account.

It has been submitted by the learned counsel for the

petitioner that although a complaint was made under Sections 406,

420, 120-B / 34 of the Indian Penal Code and Section 138 of the Act,

yet the learned Magistrate has taken cognizance under Section 138 of

the Act only. He submits that petitioner is not the drawer of the

cheque, as the cheque in question has been signed by the other co-

accused Deepak Kumar. In this connection, he has filed a

supplementary affidavit wherein the photo copy of the cheque has

been enclosed as Annexure-2, which, on perusal, has been found to be

of dated 17.10.2007 and signed by the co-accused Deepak Kumar

only. It is submitted that yet another co-accused, namely, Birendra

Kumar Sharma had moved this Court for quashing of the order of

cognizance dated 05.03.2008, passed in the present case, in which a

Coordinate Bench of this Court in Cr. Misc. No. 48752 of 2008 by

order dated 02.03.2012 has quashed the impugned order dated

05.03.2008 with respect to the petitioner of that case. It is further

submitted that from perusal of the complaint case of opposite party

no. 2, it appears that he has also admitted that the cheque in question

has been signed by Deepak Kumar, co-accused only, which is alleged

to be dishonoured due to insufficiency of fund and incomplete

signature of the drawer co-accused Deepak Kumar. From perusal of

the aforesaid provisions of Section 138 of the Act, it is clear that the

said provision is applicable only to the drawer who has signed the

cheque and not any other person. Admittedly, the petitioner is not the

drawer of cheque in question, which has been said to be dishonoured

on presentation by the opposite party no. 2 for credit. The relevant

extract of Section 138 of the Act is quoted hereinbelow :-

"138. Dishonour of cheque for insufficiency, etc, of funds in the account.- Where any cheque drawn by a person on 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to [two] year, or with fine which may extend to twice the amount of cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within 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."

In the result, the impugned order dated 05.03.2008,

passed by Sri R. Kumar, learned Judicial Magistrate, 1st Class, Patna

City, Patna in CA No. 1052/2007 summoning the petitioner for the

offence punishable under Section 138 of the Act appears to be an

abuse of the process of the Court, hence, the same is hereby quashed

with respect to this petitioner only.

The application is, accordingly, allowed.