I.P.MUKERJI,J. - (1.) This interlocutory application, in aid of the suit, is moved ex-parte at 2.00 P.M. today as an unlisted court application, pursuant to leave granted by me in the morning. Such leave was granted as great urgency was shown to obtain an interim order today. At the time of granting leave, I had directed the Advocate on record for the plaintiff to serve a copy of the petition upon the defendant bank. It is submitted that a copy has been so served. Let an affidavit of service be filed in course of 10th February, 2012.
(2.) The plaintiff No. 1 is a public company of which the other plaintiffs are Directors. The plaintiff company obtained credit facilities from the defendant bank. Further to an arrangement between the plaintiff company and the bank, the plaintiff was granted cheque purchase facility. I have been made to understand that by this facility the defendant bank purchased cheques drawn in favour of the plaintiff company by their debtors. These cheques in turn were encashed by the defendant bank and accounted for. Now it appears that several cheques drawn by the debtors of the plaintiff company were dishonoured for insufficiency of funds. The defendant bank issued notices all dated 12th January, 2012, threatening action under Section 138 of the Negotiable Instrument Act, 1881.
(3.) At this stage a very technical point is taken. That point is that to attract prosecution under Section 138 of the said Act the cheque has to be drawn by the person to whom the notice is directed. In this case, the plaintiff company was not the drawer of the cheques but they were the payee. Hence Section 138 action is not maintainable.;