EQBAL KHAN Vs. STATE OF JHARKHAND & ANR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the learned counsel for the State. This petition has been filed for quashing the order dated 20.07.2011 in Complaint Case No. 1415 of 2010, passed by Sri K.K.Shukla, learned Judicial Magistrate, Ranchi, whereby, in a complaint case filed or the offence under Section 138 of the Negotiable Instruments Act (here in after referred to as N. I. Act), the Court has found the prima facie offence against this petitioner and the process has been ordered to be issued against him.

(2.) From the complaint petition which has been brought on record, it would appear that there was an agreement between the complainant and one Asgar Ali Khan and the liability was mainly of the said Asgar Ali Khan, which he did not discharge. Subsequently, the petitioner took over the liability of the said Asgar Ali Khan on himself and he issued a cheque in favour of the complainant for an amount of Rupees Four Lakhs, which was presented in the Bank within the due date, but the cheque was dishonored as it was found that the account was closed by the petitioner. Thereafter, legal notice was also issued to the petitioner within the prescribed period of 15 days, which was replied by this petitioner denying the issuance of the cheque by him in favour of the complainant. Hence, the complaint petition was filed. The court below upon consideration of the aforementioned facts found that prima facie, the offence was made out against the petitioner and ordered for issuance of process against him. Learned counsel for the petitioner submits that from the complaint petition, it would appear that the liability, if any, was not of the petitioner, rather the same was of Asgar Ali Khan and as such the petitioner cannot be held liable for the offence under section 138 of the N. I. Act. In this connection, learned counsel for the petitioner has placed reliance upon the decisions of the Hon'ble Supreme Court of India in the case of P.J.Agro Tech Limited & Others -Versus- Water Base Limited, 2010 12 SCC 146 and in the case of M.S.Narayan Menon @ Mani -Versus- State of Kerala & Anr, 2006 4 ECC 70 (SC).

(3.) I have gone through both these decisions, cited by the learned counsel for the petitioner. In the case of P.J.Agro Tech Limited (supra), it was the respondent no.11, who had issued the cheque in favour of the complainant and it was held that the Company and its Directors, who had not issued the cheque, could not be made liable under Section 138 of the N. I. Act for the defaults committed by the respondent no.11 who had issued the cheque. In the case of M.S.Narayan Menon (supra), it was found that the cheque which was dishonored, was issued by way of Security only and nothing was found due against the drawer of the cheque and in that view of the matter, Section 138 of the N. I. Act was not found attracted. In my considered view, both these decisions are not applicable to the facts of this case.