JUDGMENT
Dr. Pratibha Upasani, J.
1. This Criminal Application is filed by the applicant Bipin Shah, being aggrieved by the order dated 27.1.1995 passed by the Metropolitan Magistrate, 28th Court, Esplanade. Bombay in C. C. No. 902/S/90. By the impugned order, the learned Metropolitan Magistrate rejected the application for discharge made by the accused No. 2/present applicant Bipin Shah.
2. Few facts which are required to be stated are as follows : The complaint dated 20.2.1995 came to be filed by the complainant -Smt. Neeru B. Mehta in the 28th Court of Metropolitan Magistrate, Esplanade. Bombay in C. C. No. 902/S/90 under Section 138 of the Negotiable Instruments Act r/w. 420 and 114 of the I.P.C. against one Ashok Mehta and Bipin Shah. The case of the complainant, to put it briefly, was that the complainant and her husband had handed over amount of Rs. 2,60,000/ – to accused No. 1 – Ashok Mehta to help both the accused in business. Both the accused are known to the complainant and her husband. Thereafter, the husband and wife started asking back for their money, which they had advanced to both the accused- After repeated oral demands, the accused agreed to settle the matter and to make payment of Rs. 2.43.000/- to Respondent No. 1 and accordingly, accused No. 1 – Ashok Mehta issued a cheque bearing No. 009130 dated 19.3.1990 for Rs. 2,43,000/- drawn on Dena Bank, Malbar Hill Branch. Bombay as full and final settlement of the payment.
3. The complainant has further stated in her complaint that she deposited the said cheque in her bank account with the Corporation Bank at Kalbadevi. However, the said cheque was dishonoured and came back with a remark – “Funds insufficient” on 22.3.1990. Thereupon, she addressed the legal notice dated 6.4.1990 to accused No. 1 calling upon him to arrange to pay her amount of Rs. 2,43,000/- since the cheque, as stated above, had been returned by her bankers duly dishonoured. Thereafter, she received a reply from an Advocate on behalf of Accused No. 1 Ashok Mehta dated 20.4.1990, wherein it was denied by Accused No. 1 that he had ever issued any cheque. It was also denied that any payment at all was due to the complainant from Accused No. 1. It was stated by Accused No. 1 in the said letter that the cheque in question was stolen and that in fact the complainant’s husband must have stolen the said cheque and given it to her. The complainant felt cheated and therefore, filed complaint dated 20.2.1995 in the 28th Court of Metropolitan Magistrate.
4. The learned Metropolitan Magistrate, 28th Court, Esplanade, Bombay, after examining the complaint, issued summons against Accused No. 1 and 2 both under Section 138 of the Negotiable Instruments Act.
5. Thereafter, it appears that Accused No. 2 Bipin Shah/present applicant made an application for discharge on 6.4.1994. In that application, the main ground of Accused No. 2 was that no legal notice was given to him by the complainant as required under Negotiable Instruments Act and therefore, there was no cause of action arisen against him. The complainant also filed her say on 19.9.1994 and objected for discharge of Accused No. 2. The learned Metropolitan Magistrate, after hearing all the sides, however, came to the conclusion that process be issued against both the accused under Section 138 of the Negotiable Instruments Act. 1881. He also came to the conclusion that when notice was given to one accused. there was sufficient cause of action to proceed against the other accused also. Giving this finding, he rejected the application for discharge made by the accused No. 2/present applicant – Bipin Shah. Being aggrieved, the said applicant had approached this Court by way of filing the present Criminal Application.
6. Mr. Kotwal, appearing for the applicant submitted that Section 138 of the Negotiable Instruments Act envisages that if a cheque is drawn by a person which is subsequently dishonoured, legal notice has to be addressed to that person to make him accountable and bring him within the sweep of Section 138 of the Negotiable Instruments Act. He has submitted that in the present case at hand, the drawer of the cheque is not the present applicant but admittedly It is accused No. 1 Ashok Mehta and admittedly legal notice was addressed by the complainant to Accused No. 1 only and not to the present applicant. Mr. Kotwal has submitted that in view of this admitted position and the settled legal position, in fact process should not have been issued against Accused No. 2 and it was erroneous on the part of the Metropolitan Magistrate to reject the application for discharge made by Accused No. 2, whom the legal notice was not addressed to him by the complainant.
7. I have heard Mr. Kotwal. appearing for the applicant and the A.P.P. for the State, who concedes that discharge application of the applicant ought to have been allowed.
8. Section 138 of the Negotiable Instruments Act, 1881. The said section is reproduced below for the sake of convenience :
“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 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 extend to one year, or with fine which may extend to twice the amount of the 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 fifteen 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 paymentof 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.”
9. Mere perusal of Section 138 will reveal that to make a person accountable for dishonour of a cheque, notice is to be sent which is addressed to him. within a prescribed period as mentioned in sub-clause (b) and if the drawer 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 15 days of the receipt of the said notice as prescribed In sub-clause (c) to Section 138, complaint is to be filed by the said person within the prescribed time limit.
10. In the present case at hand, the admitted position is that though the complaint is against both the accused, namely, Ashok Mehta and Bipin Shah, legal notice was sent only to Accused No. 1-Ashok Mehta and not to Bipin Shah. These two are separate individuals and it is also pertinent to note that the drawer of the cheque was only Ashok Mehta and not Bipin Shah.
11. In view of this, issuance of process against both the accused was Itself not proper. The finding of the learned Magistrate In the Impugned order that notice to one accused was sufficient for cause of action against the other accused is completely erroneous. However, there was no cause of action arisen against Accused No. 2/present applicant Bipin Shah. On this background, the criminal application will have to be allowed. Hence, the following order :
“Criminal Application No. 748 of 1995 Is allowed in terms of prayer clause (a) and Issue of summons to the applicant Bipin Shah as well as order dated 27.1.1995 refusing to discharge the applicant Bipin Shah passed by the learned Metropolitan Magistrate. 28th Court, Bombay In C.C. No. 902/S/90 is hereby quashed and set aside.”
Rule accordingly made absolute in the above stated terms.
12. Criminal Application No. 748 of 1995 is accordingly disposed of.