S.N.Aggarwal, J. - (1.)THIS petition under section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner seeks quashing of Complaint Case No.4668/08 instituted against her by respondent No. 1 for offence under section 138 of the Negotiable Instruments Act, 1881 ("NI Act" for brevity).
(2.)A legal question that calls for an answer in this petition is whether the legal heirs of the signatory to the cheque are criminally liable to be proceeded against for offence under section 138 of NI Act.
Briefly stated, the facts giving rise to the above legal question are that a complaint under section 13 8 of the NI Act was filed by respondent No. 1 on accusations against the petitioner that her mother late Shrimati Rajmadanlal had issued a cheque bearing No.133091 dated 20/12/2007 for an amount of Rs.7,40,000/- in consideration of repayment of loan. It was alleged that the said cheque, when presented for encashment by respondent No. 1 in his Bank, was returned unpaid on account of "insufficiency of funds". Respondent No.1, being the complainant, sent a legal notice to the petitioner's mother late Shrimati Rajmadanlal on 30/1/2008 which was returned with postal endorsement that the addressee late Shrimati Rajmadanlal had died. Thereafter, respondent No. 1 sent another notice dated 7/2/2008 regarding bouncing of the aforementioned cheque to the petitioner in her capacity being the legal heir of the signatory to the cheque. Since payment was not made by the petitioner despite service of the legal notice, a complaint under section 138 of NI Act was filed by respondent No. 1 against the petitioner. After pre-summoning evidence, petitioner has been summoned under section 204 of Cr.P.C. by the concerned Trial Court vide its impugned order dated 16th May, 2008. It is aggrieved by this order of the Trial Court, the petitioner has filed the present petition.

Admittedly, petitioner was not the signatory to the cheque and has not issued the cheque in question to respondent No. 1 in regard to which a complaint under section 138 of NI Act was filed against her. Section 138 of the NI Act makes only signatory to the cheque returned unpaid criminally liable. Section 13 8 of the NI Act is relevant and is extracted below :

"138. Dishonour of cheque for insufficiency, etc. of funds in the account,- 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) or with fine which may extent 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 thirty 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."

(3.)A plain reading of statutory provisions of Section 138 extracted above would show that the beneficiary of the cheque can proceed for offence under section 138 only against a person who had issued the cheque which was returned unpaid on account of insufficiency of funds. In the opinion of this Court, criminal liability is not transferred to the descendants or legal heirs of the person who had issued the cheque being the subject matter of complaint under section 138 of NI Act. I draw strength to support my view in this regard from a judgment of Rajasthan High Court which is directly on the point in issue and that judgment is in the case of Draupadi Bai alias Maya Sippi vs. State of Rajasthan, 2000 (3) Crimes 645.
Since in the present case, the cheque in question which is the subject matter of complaint against the petitioner was not issued by the petitioner herself, she is not criminally liable in regard to the cheque issued by her mother late Shrimati Rajmadanlal. There appears to be a jurisdictional error in the impugned order of the Trial Court summoning the petitioner for offence under section 138 of NI Act on the complaint of respondent No. 1 with regard to the cheque in question issued by the petitioner's mother. If the impugned order is allowed to stand, it shall be travesity of justice with the petitioner who cannot be held criminally liable in regard to a cheque issued by her mother during her life time.