Tulsi Ram Yadav vs Smt. Phoolwati

M.C. Garg, J.—A short point involved in this matter is as to whether the second respondent who has not signed the cheque which was dishonoured for that a complaint u/s 138 of Negotiable Instruments Act was filed against the signatory of the cheque, i.e., second respondent in the complaint could have proceeded against the second respondent, i.e., the petitioner also. As far as respondent is concerned, learned Counsel submits that in this case there are two allegations, i.e., dishonoured of cheque as also of cheating. It is submitted that right from Para 2 and in Para 6 allegations have been made of cheating against the petitioner and his son as such even if it is admitted that no case u/s 138 of Negotiable Instruments Act is made out against the second respondent, offence u/s 420 of IPC may be made out against him.

Having heard learned Counsel for the parties and considering the ingredients of Section 138 of Negotiable Instruments Act, I am satisfied that so far as the petitioner is concerned who is not the signatory of the cheque which has been dishonoured, no case against him u/s 138 of Negotiable Instruments Act is made out but in so far as other allegation, i.e., of cheating, he is also a party of cheating along with his son. The Court can certainly examined those allegations. With these observations, the petition filed by the petitioner is allowed to the extent that the petitioner shall not be prosecuted u/s 138 of Negotiable Instruments Act on the basis of present complaint, however, complaint may proceed against him for the offence u/s 420 of IPC. Interim order passed earlier by this Court is vacated. The Trial Court may proceed against Devi Singh who is first respondent in the complaint case.