JUDGMENT
T.K. Chandrashekhara Das. J.
1. Heard learned counsel for the petitioner, None appeared for the Respondent No. 1.
2. This matter arises under Section 138 of the Negotiable Instrument Act. The Respondent filed a complaint before Additional Chief Metropolitan Magistrate on account of the dishonouring of a cheque of Rs. 10,000/- issued by the petitioner on 8.12.1998. The aforesaid cheque was dishonoured and subsequently notice as contemplated under Section 138 of the N. I. Act was served and the same was delivered on 19.4.1999 to the petitioners- After that the aforesaid complaint was filed.
3. The learned Counsel for the petitioner Mr. Marwadi submits that the complaint itself shows that the cheque in question was issued by the petitioner No. 1 for the liability of the petitioners 2 and 3. It is necessary in this context to refer to the relevant paragraph contained in the notice dated 19.4.1999 :
“My client states that Sai Krupa Network are the frachise of my client under an agreement dated 1.2.1996 and you are the brother of Mr. Jignesh Sagar, the proprietor of Sai Krupa Network.
My client states that under the said agreement Sai Krupa Network was required to pay a sum of Rupees 1,95,000/- as accumulated over a period of time to my client.
In satisfaction thereof you alongwith your brother visited my client’s office and gave your 7 personal cheques all drawn in Vijaya Bank, Borivali branch dated 8.12.1998 for Rs. 17,000/- each aggregating to Rs.1,19,000/- bearing Nos. 559814 to 559820. My client have now been informed on 6.4.1999 that the said cheques when redeposited were all returned back dishonoured for insufficient funds.”
4. Para 7 of the complaint also makes it clear that in discharge of the liability of the petitioners 2 and 3, the cheque in question was drawn by the petitioner No. 1. In order to maintain the complaint under section 138 of the N.I. Act, the cheque must be issued in discharge of any liability. The question posed therefore is whether A can issue a cheque in discharge of the liability of B, inspite of the fact that the liability of B has been taken over by A. In the absence of any documents, creating the liability of petitioners 2 and 3 in favour of petitioner No. 1, mere statement that the cheque was issued by petitioner No. 1 for and on behalf of the petitioners 2 and 3 will not be sufficient to give the cause of action for a complaint under section 138 of the N, I. Act. Even in the notice sent to the petitioner it has not been mentioned that the drawer of the cheque has taken over the liability of the petitioners 2 and 3. “Any liability” occurred in the section is only to mean that any kind of liability of the drawer; and not any other’s liability, unless the payee, the drawer and the original debtor entered into any agreement to that effect. In order to entertain a complaint, the Magistrate should have material before him to the effect that there is tripartriate agreement in the above nature. Sometime, a surety of debtor will also issue a cheque. In that case also section 138 will attract in the case of dishonour. Here in this case we have only a unilateral lawyer notice which says that the petitioner had undertaken the liability of his brother Mr. Jinish Sagar. It is well settled principle of criminal law that a penal provision of a statute has to be strictly constructed and if in a wider connotation it will amount disadvantage to the accused, such awider connotation cannot be accepted. On a reading of section 138 of the
N.I. Act it is clearly spelt out that a cheque must be drawn for discharge of the liability of the drawer of the cheque. In other words if he has drawn a cheque for the discharge of the liability of another person without creating any document, it will not and it would not come under section 138 of the N.I. Act.
5. In view of this the cheque in question has not drawn for the discharge of the liability of the drawer namely petitioner No. 1 and no offence is made out under section 138 of the N.I. Act.
6. In the result, the Criminal Application is allowed and the Rule is made absolute in terms of prayer clause (b).
In the circumstances, no order as to costs.
Parties to act on the authenticated copy of this order issued by Court Sheristedar.