HITEN SAGAR Vs. IMC LIMITED

JUDGEMENT

(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 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.) 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 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, 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 sufficient to give the cause of action for a complaint under section 138 of 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 sections is only to mean that any kind of liability of the drawer; and not any others 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. Jignesh Sagar. It is well settled principle of criminal law that a penal provision of a statute has to be strictly construed and if in a wider connotation it will amount disadvantage to the accused, such a wider connotation cannot be accepted. On a reading of section 138 of 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.