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TMI Blog2022 (5) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... h deals with offences by and on behalf of the company or partnership, where the signatory to the cheque may be a Director of the company or a Partner of a partnership firm. In the present case, the petitioner/HDFC Bank has been made a party by the complainant/respondent No. 1 where no role can be attributed to the bank as far as the issuance or the dishonour of the cheque in question is concerned. The bank is only the custodian of the money of the customers and has to comply with the instructions of such customers. In case of insufficiency of funds, the bank is only to report the same and as such, cannot by any stretch of the imagination be liable for any act of the customer who has issued the cheque which was later dishonoured. Viewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rupees one lakh) only dated 27.10.2020 bearing No. 000014 drawn on HDFC Bank, Mawlai Nonglum Branch was issued to him by the respondent No. 2 and on being presented at the bank of petitioner No. 2, in Crl. Petn. No. 18 of 2021 on 27.10.2020, the bank had accordingly transferred the fund to the respondent No. 1 s account on 29.10.2020. 3. The respondent No.1 had then visited the bank of the respondent No. 2, that is, HDFC Bank, Police Bazar Branch, Shillong, it was found that the said amount of ₹ 1,00,000/- (Rupees one lakh) only has been reverted back to the bank account of respondent No. 2 herein. 4. Being aggrieved by the alleged action of the respondent No. 2 as well as the petitioner No. 2 herein, the respondent No. 1 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent No.1 Shri Baklai Siej. However, on the cheque being presented at the bank on 03.11.2020, it was found that there is no money in the account of the respondent No. 2. The dispute therefore is basically between the respondent No. 1 and the respondent No. 2. The petitioners being the bank has no connection whatsoever with the said dispute, but the petitioner bank has been unnecessarily made as one of the parties in the said dispute. 9. Again, Mr. Smith has submitted that the provision of Section 138 N.I. Act has no relevance or application, as far as the petitioners herein are concerned and therefore, this is a fit case for quashing of the proceedings qua the petitioners. In this regard, the case of Alka Khandu Afhad v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e holder of the account on which the cheque is drawn can be made liable and such culpability cannot be extended to others except as provided under Section 141 N.I. Act which deals with offences by and on behalf of the company or partnership, where the signatory to the cheque may be a Director of the company or a Partner of a partnership firm. 14. In the case of Alka Khandu Afhad (supra), the Hon ble Supreme Court at paragraph 16 has observed that only a person who is the signatory to his cheque and such cheque having been returned by the bank unpaid can be said to have committed an offence under Section 138 N.I Act. This section does not speak about joint liability, even in case of a joint liability, in case of individual persons, a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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