1. This petition has been filed by the applicant under Section 482 of Cr.P.C. for quashing the complaint case No.SC NIA/0000081/2017 so far as it relates to the present petitioner, as also for quashing the order dated 23.3.2018 passed by the learned JMFC, Panna whereby a summon has been issued to the petitioner.
2. In brief the facts of the case are that the present petitioner happens to be the Chief Manager of the State Bank of India, Branch Ajaygarh, District Panna and the aforesaid complaint has been filed by respondent Ramratan Kushwaha in the Court of JMFC, Panna under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act, 1881') against the firm M/s Maa Vaishnav Construction through its proprietor as the drawer of the cheque and also against the present petitioner who was posted in the said branch of the Bank where the cheque was presented for encashment.
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dmittedly the cheque in question which is the subject matter of the dispute has been issued by the firm M/s Maa Vaishnav Construction to present respondent Ramratan Kushwaha for a sum of Rs.8,50,000/- on 10.4.2017. The aforesaid cheque was presented by the respondent in his Bank on o4.7.2017 in his account No.3585357022 at the State Bank of India, Branch Ajaygarh District Panna but the same was returned on the ground of the same being out dated. It is alleged by the complainant that the present petitioner, in conspiracy with the drawer of the cheque had allowed the cheque to be dishonoured on the ground that the instrument is outdated. The contention of the respondent is that the cheque was presented before the concerned bank well before the period of three months validity, as the same was issued on 10.4.2017 and it was presented in the bank on 4.7.2017, however the same was returned with the aforesaid endorsement on 25.7.2017.
4. Learned counsel for the applicant has submitted that the cheque in question was presented in Ajaygarh Branch of the State Bank of India and the same was processed on the same day as per the banking regulation and was sent for clearance to CCPC, Jabalpur on 5.7.2017 and in the transit its validity expired leading to dishonour of cheque. Learned counsel for the applicant has further submitted that the complaint against the applicant bank employee in respect of dishonour of cheque issued by one party to another is not maintainable, as the same is outside the purview of Section 138 of the NI Act, 1881. It is further submitted that the petitioner has joined the aforesaid branch in November, 2016 only and does not know the said firm M/s Maa Vaishnav Construction. Apart from that the process was done by the employees of the bank in discharging of their official duties and as such no irregularity or illegality has been committed by the bank officer. Thus it is submitted that the order dated 23.3.2018 passed by the JMFC Panna issuing summon to the petitioner may be quashed.
5. On the other hand, learned counsel for the respondent Shri Manoj Sharma has vehemently opposed the prayer of the applicant, and it is submitted that the respondent had presented the cheque in question well within the period of limitation and according to Section 139 of the NI Act, 1881, a cheque is said to be presented on the day when it is actually presented and it cannot be inferred that after presentation of the same within the prescribed period of three months, it becomes time barred, hence it cannot be said to be invalid during this inter-bank transit period. It is further submitted that the petitioner, with mala-fide intention has issued the memo regarding dishonour of cheque on account of it being outdated. Thus, the petitioner cannot escape liability. It is further submitted that as per the provisions of Section 141 of the NI Act, 1881, the same applied of the petitioner’s company incorporated and its employees, who are responsible for the acts of the company and in the present case since the petitioner happens to be an employee of the registered company, the provisions of the Act, 1881 is applicable to him in full force, and therefore no interference is called for. Under these circumstances, it is submitted that no illegality has been committed by the learned Judge of the trial Court in taking cognizance and issuing summon against the petitioner.
6. Heard the learned counsel for the parties and perused the record.
7. The only question for consideration of this Court is whether a person, who is neither a drawer nor a drawee can be made a party to a litigation under Section 138 of the NI Act, 1881. Section 138 of the Act,1881 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 19 [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 6 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.
Explanation.- For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability.]'
8. A bare perusal of the aforesaid section reveals that it refers to a person as an accused of an offence under Section 138 of the NI Act, 1881, who is the drawer of the cheque which has been dishonoured. Section 138 of the NI Act does not contemplate any other mode of impleading of any other person as an accused in the case of dishonour of cheque. It is trite law that a penal legislation has to be strictly construed. Reliance is also placed on the judgment of Hon’ble Apex Court in the case of Mainuddin Abdul Sattar Shaikh Vs. Vijay Salvi, reported in (2015) 9 SCC 622. The relevant para 11 of the said judgment is re-produced as under:-
'11. About the liability under Section 138 of the NI Act, where the cheque drawn by the employee of the appellant Company on his personal account, even if it be for discharging dues of the appellant Company and its Directors, the appellant Company and its Directors cannot be made liable under Section 138. Thus, we observe that in the abovementioned case, the personal liability was upheld and the Company and its Directors were absolved of the liability. The logic applied was that the section itself makes the drawer liable and no other person. This Court in P.J. Agro Tech Ltd. noted as under: (SCC p.150, para 14)
'14…...An action in respect of a criminal or a quasi-criminal provision has to be strictly construed in keeping with the provisions alleged to have been violated. The proceedings in such matters are in personam and cannot be used to foist an offence on some other person, who under the statute was not liable for the commission of such offence.'
Going by the strict interpretation of provision, the drawer which in the present case is the respondent, is liable under Section 138 of the NI Act.'
A perusal of the aforesaid dictum reveals that a criminal law has to be construed strictly and no other interpretation of the same is permissible. In such circumstances, an employee of the Bank cannot be prosecuted under Section 138 of the NI Act, 1881 for dishonour of cheque.
9. In the result, the present petition stands allowed and the proceedings against the present petitioner in the case No.SC NIA/0000081/2017 are hereby quashed and as a corollary, the order dated 23.3.2018, whereby summons have been issued to the petitioner is also quashed. However, the respondent would be free to take appropriate legal remedy against the bank or its delinquent employees for the negligence due to which the petitioner has suffered the financial loss. Accordingly, with the aforesaid liberty to the respondent, the petition stands disposed of.