JUDGMENT
T. Ranga Rao, J.
1. This petition is filed under section 482, Criminal Procedure Code, to quash the proceedings in C.C. No. 436 of 1995 on the file of the IIIrd Addl. Judicial First Class Magistrate, Rajahmundry.
2. The first respondent filed a private complaint against the petitioner/A-3 and others alleging that accused Nos. 1 and 2 constitute a joint Hindu family and A-1 was the manager of the joint Hindu family and the petitioner herein is the wife of A-1. It is alleged that accused Nos. 1 to 3 approached the complainant and obtained financial accommodation of Rs. 1,50,000 and purchased a car bearing No. AIK 969 in the name of the petitioner/A-3 and A-1 issued a post dated cheque on February 1, 1995, for Rs. 2,56,300 and the cheque was presented and it was returned dishonoured on February 8, 1995. Then he issued a notice on February 12, 1995, to A-1 to A-3 demanding to pay the amount within fifteen days and the accused received the notice on February 14, 1995, and failed to pay the amount and is liable for punishment under section 138 of the Act.
3. The learned Magistrate originally dismissed the complaint without recording the sworn statement against A-2 and A-3. Against the said orders, the complainant filed a revision before the Sessions Judge in Criminal Revision No. 65 of 1995 and the said revision was allowed directing the Magistrate to record the sworn statement and then pass appropriate orders.
4. The learned Magistrate after recording sworn statement took the case on file under sections 138 and 142 of the Negotiable Instruments Act.
5. Now, the petitioner, who is A-3 filed this petition to quash the proceedings.
6. Learned counsel for the petitioner submitted that the petitioner has not issued the cheque and admittedly, the cheque was issued by her husband, A-1, and hence, the prosecution against the petitioner is not maintainable under section 138 of the Negotiable Instruments Act. She further submitted that the offence contemplated under section 138 of the Act is only against the drawer of the cheque alone, but not others.
7. But the respondent’s counsel submitted that A-3 is the wife of A-1, who issued the cheque and the car was purchased in her name after obtaining the loan from the complainant and the cheque was issued to discharge the said liability, and hence, the prosecution is maintainable.
8. It is useful to extract section 138 of the Negotiable Instruments Act.
“… 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 provisions 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 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.
Explanation. – For the purposes of this section, ‘debt or other liability’ means a legally enforceable debt or other liability.”
9. Therefore, it is to be seen from a perusal of the above provision of law that if the cheque was drawn by a person on an account maintained by him with the banker for payment of money to another person from out of that account, for the discharge, in whole or in part of any debt or other liability was returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to be guilty of the commission of the offence subject to the other conditions mentioned in the proviso to section 138 of the Negotiable Instruments Act and the other provisions mentioned in Chapter XVII of the Negotiable Instruments Act. If the person committing the offence under section 138 of the Act is a company, then the person in charge of the company, etc., as well as the company shall be deemed guilty of the offence as provided under section 141 of the Act. It is settled principle of law that penal provisions should be construed strictly and the emphasis is on the words “such person”. It is manifest from the expression of the words used in section 138 of the Act that “such person shall be deemed to have committed the offence” relate to the person who has drawn the cheque in favour of the payee and if the said cheque is returned unpaid on account of the conditions mentioned under section 138 of the Act, such person alone is liable but not others except in the contingencies mentioned under section 141 of the Act.
10. Admittedly, in this case, the petitioner herein has not issued the cheque and her husband, A-1, issued the cheque in discharge of the loan obtained from the complainant for purchase of a car. Simply because the car was purchased in the name of the petitioner, that does not fasten the liability for punishment under section 138 of the Act, as the said provision contemplates punishment only against the drawer of the cheque but not others.
11. Therefore, the proceedings against the petitioner for an offence under section 138 of the Negotiable Instruments Act are not maintainable and liable to be quashed.
12. In the result, the petition is allowed and the proceedings in C.C. No. 436 of 1995 on the file of the IIIrd Additional Judicial Magistrate of First Class, Rajahmundry, in so far as the petitioner is concerned, are quashed and the learned Magistrate is directed to proceed with the case in accordance with law against the other accused.