Allahabad High Court
Gaurav Srivastava vs State Of U.P. And Another on 7 January, 2014
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD 'AFR' Court No. - 44 Case :- APPLICATION U/S 482 No. - 10218 of 2012 Applicant :- Gaurav Srivastava Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rakesh Pandey Counsel for Opposite Party :- Govt.Advocate,A.K.Dwivedi Hon'ble Manoj Misra, J.
Heard learned counsel for the applicant and Sri Ashok Kumar Dwivedi, learned counsel for the opposite party no. 2 (complainant) and learned A.G.A. for the State.
By the present application, the applicant has prayed for quashing of the complaint and all proceedings in pursuance thereof, in Complaint Case No. 5882 of 2011, under Section 138 of the Negotiable Instruments Act, pending in the court of Additional Chief Judicial Magistrate, Gautam Budh Nagar.
The submission of the learned counsel for the applicant is that, admittedly, the cheque in respect of which proceedings have been initiated was drawn by Rajesh Kumar Srivastava, the father of the applicant. It has been submitted that the applicant has not drawn the cheque and the father of the applicant namely, Rajesh Kumar Srivastava, the drawer of the cheque, has not been made an accused, therefore, the complaint and all consequential proceedings deserve to be quashed.
The aforesaid position is not disputed by the learned counsel for the opposite party no. 2.
A perusal of the Cheque (Annexure no. 8 to the affidavit) in respect of which the Complaint (Annexure No.11 to the affidavit) has been filed, reveals that it was drawn by Rajesh Kumar Srivasatava, the father of the applicant, and not by the applicant. The Complaint has been filed against the applicant (Gaurav Srivasatava) and not Rajesh Kumar Srivasatava, its drawer.
Section 138 of the Negotiable Instruments Act provides as under:
"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 provisions of this Act, be punished with imprisonment for a term which may be extended to two years......"
The words 'such person' is significant which, when read with the opening part of Section 138 of the Negotiable Instruments Act that is the words "drawn by a person", means the drawer of the cheque. Thus, it is the drawer of the cheque against whom proceeding under section 138 can be drawn. The only exception to that rule has been provided by Section 141 of the Negotiable Instruments Act, which provides that when an offence is committed by a Company, every person, who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence. Since, admittedly, the impugned complaint is not against a Company, the proceeding under Section 138 of the Negotiable Instruments Act cannot be sustained as against the applicant, who is, admittedly, not drawer of the cheque.
In view of the above, the complaint as also the consequential proceedings in Complaint Case No. 5882 of 2011, under Section 138 of the Negotiable Instruments Act, Police Station Sector-24, Noida, pending in the court of Additional Chief Judicial Magistrate, Gautam Budh Nagar, are hereby quashed. The application stands allowed.
Order Date :- 7.1.2014 Rmk.