Landmark Judgment on Handing Over of Dishonored Cheque Amaresh Patel LANDMARK JUDGMENT Wed, Oct 09, 2019, at ,10:31 AM Title of the Case – Handing Over of Dishonored Cheque is not an Offence u/s 138 of NI Act Name of the case – Smt. Asha Badwa vs. Ram Gopal., Crl.Misc. No. 2726/2014 (Rajasthan High Court) Date of Judgment – 13th Sept 2017 Judges: Justice Dr. Pushpendra Singh Bhati Subject and sections involved – Section 138 of Negotiable Instruments Act, 1881 Issue: Whether petition for quashing entire proceeding of criminal case in nature of the case is maintainable? Fact of the Case: A complaint was filed under Section 138 of the Negotiable Instrument Act, by the respondent against the petitioner and her son. The complaint proceeded and after an enquiry, cognizance has been taken against the present petitioner. It is an admitted position that the cheque was issued by the son of the present petitioner. It is also an admitted position that the petitioner was not the original partner in the Firm, but came into the picture only when her husband expired and she entered the Firm. Click Here to Get All Important Judgment of the Month Ratio of the Case: The Rajasthan High Court observed that bare reading of the complaint as well as the relevant law, on the face of it, makes it clear that the offence is not made out against the present petitioner as she neither issued the cheque and it has not been attributed to her and the allegation was that she had handed over the cheques which does not mean she had consented to offence by any stretch of imagination. Key Points from the Case That the legislative intention while making a specific provision of Company/Firm was that any person who was not directly responsible or merely a Director of Company or Firm could be held guilty for the alleged offence, only if he had committed offence with the consent of such person. That on a bare reading of the complaint as well as the record, it is clear that only role of the petitioner is that she handed over the cheque but it has not been alleged that what was her role in consenting to the offence that is a default or dishonoring of the cheque. That the purport of the special law under the Negotiable Instrument Act is to ensure that the promise to pay is abided by the person so promising. The provision under Section 139 of the NI Act is that it shall be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of NI Act for the discharge, in whole or in part, of any debt or other liability. That the legislative intention was that the holder of the cheque shall be entitled to receive the amount so promised from the person from whom the cheque is received. Any person, other than the person could be held responsible under Section 141(2) of the NI Act only when he is an office bearer of the Company of Firm.