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2022 (8) TMI 465 - HC - Indian LawsDishonor of Cheque - cheating or not - cheques in question have not even been issued by the petitioner company - misuse of letter heads of the petitioner company - agreement to sell with regard to flat - issuance of any cheque or not - legally enforceable debt or not - section 138 of NI Act - HELD THAT:- The mandate under section 138 is clear. It is only to be invoked where a cheque has been drawn by a person for any amount of money in discharge of part or whole of any debt or liability, and that cheque remains unpaid on account of insufficient funds lying to the credit of the drawer of the cheque or if it exceeds the amount arranged to be paid from that account. In the present case, the petitioner company has not issued the cheques in question nor was there any debt or liability due from them. There has been no averment in the 138 complaint as regards to any debt owed by the petitioner to respondent no.2 - It is pertinent to note that the ingredients of Section 138 NI Act have not been fulfilled in the present case as the cheques in question have not even been issued by the petitioner company thereby not even meeting the first ingredient of the requirement u/s 138 Negotiable Instruments Act, 1881. The petitioner company is neither the drawer of the cheque nor is there any debt or liability shown against the petitioner-company. The petitioner company has sufficiently shown that they had no role in the case at hand and cannot thus be held liable for dishonour of a cheque which was not even issued by them or on their behalf in the first place. In these circumstances, where there are no ingredients made out against the petitioner-company, continuation of proceedings against them will be an abuse of the process of law. The fact that the revision petition had been filed and had been withdrawn will not come in the way of the inherent jurisdiction exercisable by this Court u/s 482 Cr.P.C. where the complaint itself fails to disclose the ingredients of section 138 Negotiable Instruments Act, being made out against the petitioner - Petition allowed.
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