Vishwas Ingale vs. Zenith Rubber Private Limited (Neutral Citation:2024:DHC:1410) - (High Court of Delhi) (21 Feb 2024)

In a complaint under Section 138 of NI Act, only drawer of the cheque who can be prosecuted

MANU/DE/1343/2024

Criminal

Present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C') praying for quashing of the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act').

On the face of it, the cheque in question has been issued claiming AakarPackart as a proprietorship concern. It is not the case of the Respondent that, the said cheque has been signed by the Petitioner. The Petitioner is, therefore, not the drawer of the cheque, basis whereof the complaint has been filed.

Under Section 138 of the NI Act, the liability is only of the drawer of the cheque. It is only where the offence is committed by a company, that a vicarious liability is created under Section 141 of the NI Act on the person who was in- charge of or was responsible for the affairs of the company or the conduct of the business of the company or on the person with whose consent or connivance or due to whose neglect as a director, manager, secretary or other officer bearer of the company, that the offence has been committed.

In Aparna A. Shah v. Sheth Developers (P) Ltd., the Supreme Court has reiterated that in a complaint under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted.

In the present case, from the cheque itself, it is apparent that, AakarPackart is a proprietorship concern and, therefore, Section 141 of the NI Act will not come into operation. It is only the drawer of the cheque who can be prosecuted. The complaint filed by the respondent is quashed. Petition allowed.

Tags : COMPLAINT PROVISION APPLICABILITY