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TMI Blog2012 (5) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 138 of the Negotiable Instruments Act, 1881 ('the Act') against the petitioner in the court of Metropolitan Magistrate, Karkardooma Courts, New Delhi. It appears that after filing of the complaint "VE Commercial Vehicles Limited" has purchased commercial vehicle business of respondent No. 1. On an application filed by "VE Commercial Vehicles Limited", it has been substituted as complainant in place of respondent No. 1 vide order dated 18-3-2010 passed by the Metropolitan Magistrate. 3. After recording pre-summoning evidence, Metropolitan Magistrate, vide order dated 23-4-2010, has summoned the petitioner for the offence under section 138 of the Act. Notice has been served on the petitioner on 20-10-2010 to which he has plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s without first claiming the amount from the principal borrower and in this scenario, even if cheques had been returned dishonoured no offence under section 138 of the Act is made out against the petitioner he being simply a guarantor. He has further contended that "VE Commercial Vehicles Limited" could not have been impleaded in place of respondent No. 1. 6. I do not find any force in the above contentions of counsel for the petitioner. The issue as regards to the liability of the guarantor being co-extensive vis-a-vis principal debtor is of no significance and is out of purview of section 138 of the Act. The language employed in section 138 of the Act clearly depicts the intention of legislation to the effect that wherever there is a def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, to the drawer, of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheques 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." 7. Bare perusal of the above provision clearly shows that the section commences with the words "Where any cheque". The use of word "any" assumes significance here. It shows that for whatever reason if a cheque is drawn on an account maintained by the drawer with its bank, in favour of any person for the discharge of "any debt" or other liability, the ingredients of offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment." 11. The issue as regards the co-extensive liability of the guara ..... X X X X Extracts X X X X X X X X Extracts X X X X
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