- (1.) The short question involved in the present case is as to whether a person, who is neither a signatory of the cheque nor has issued cheque, can be made accused in a complaint under Section 138 of the Negotiable Instruments Act.
(2.) The brief facts of the case are that respondent (complainant) has filed complaint against Avtar Singh, father as well against Navjot Kaur daughter of Avtar Singh alleging therein that accused No.2-Navjot Kaur got admission in Foreign Nursing Course; to discharge the liability of Navjot Kaur-accused No.2, accused No.1, father of accused No.2 has issued one account payee cheque No.173472 from S.B.Account No.134400 dated 16.9.2007 for a sum of Rs.1,25,000/- drawn on Punjab National Bank, D.A.V. College, Jalandhar; on the presentation, cheque was dishonoured on account of insufficient funds on 22.9.2007; a legal notice was issued on 20.10.2007. However, despite of the service, payment was not made within the stipulated period, therefore, complaint was filed before the learned Magistrate on 27.11.2007.
(3.) I have heard learned counsel for the parties and have carefully perused the record. Section 138 of the Negotiable Instruments Act reads as under:- "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 extend 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.";