2005 (7) TMI 716 - HC - Indian Laws

Summary

Issues Involved:
1. Minimum requirements to issue process under Section 138 of the Negotiable Instruments Act.
2. Circumstances under which persons referred to in Section 141 can be proceeded against for an offence under Section 138.
3. Liability of a person who neither issues a cheque nor maintains an account.

Detailed Analysis:

1. Minimum requirements to issue process under Section 138:
The court examined the essential elements required to constitute an offence under Section 138 of the Negotiable Instruments Act. It was emphasized that the cheque must be drawn by the accused on an account maintained by him, and the cheque must be for the payment of money to another person from that account. The court noted that none of these requirements were met by the petitioner or the society in this case, as the cheque was drawn by the second accused in his personal capacity.

2. Circumstances under which persons referred to in Section 141 can be proceeded against for an offence under Section 138:
Section 141 deals with offences by companies and states that every person in charge of and responsible for the conduct of the business of the company, at the time the offence was committed, shall be deemed guilty. The court highlighted that for a person to be held liable under Section 141, the commission of the offence by the company must first be established. In this case, there was no evidence that the society committed the offence, as the cheque was not drawn on the society's account. Thus, the petitioner, as the secretary of the society, could not be held liable.

3. Liability of a person who neither issues a cheque nor maintains an account:
The court clarified that a person who neither issues a cheque nor maintains an account cannot be held guilty under Section 138. The petitioner did not maintain an account or issue the cheque in question. The cheque was drawn by the second accused on his personal account. Therefore, the petitioner had no personal liability under Section 138, and no proceedings could be initiated against him under Section 141.

Conclusion:
The court concluded that the trial court acted hastily in issuing summons to the petitioner based solely on the description in the cause-title of the complaint. The proceedings against the petitioner were quashed, and the learned Magistrate was directed to drop all further proceedings against him. The judgment emphasized the necessity of establishing the basic requirements of Section 138 and the conditions under Section 141 before proceeding against any individual.