LexMAINUDDIN ABDUL SATTAR SHAIKH versus VIJAY D. SALVI
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(2015] 6 S.C.R. 1033 MAINUDDIN ABDUL SATTAR SHAIKH v. VIJAY D. SALVI (Criminal Appeal No.1472 of 2009) JULY 06, 2015 [PINAKI CHANDRA GHOSE AND UDAY UMESH LALIT, JJ.] Negotiable Instruments Act, 1881: A B c s. 138 - Dishonour of cheque - Liability - Apµellant booked a flat proposed to be developed by company and gave cheque to the Director-respondent of the company - Project did not materialize - Respondent drew a cheque of 0 same amount in favour of appellant of an account maintained by him with his banker towards refund of the booking amount - Dishonour of said cheque - Appellant filed complaint ul s. 138 against respondent- Trial court acquitted respondent on the ground that the company was not made party and as E respondent was made accused in his personal capacity, he was not liable to make payment for the company - High Court upheld the order of the trial court - On appeal, held: As per s. 138, the person who draws a cheque on an account maintained by him for paying the payee alone attracts liability F - Since respondent was the drawer of the cheque, he was liable in his personal capacity when the company was not made a party to the complaint. Allowing the appeal, the Court G HELD: The essentials for attracting a liability under Section 138 of NI Act are that the person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained H 1033 1034 SUPREME COURT REPORTS [2015] 6 S.C.R. A by him with a Banker for payment of any amount of money to another person from out of that account for discharge in whole or part, of any debt or other liability. In the present case, it is an admitted fact that the drawer of the cheque was the respondent, who had drawn the B cheque on a bank account maintained by him towards the refund of the booking amount. Therefore, he was the drawer of the cheque. About the liability under Section 138, where the cheque drawn by the employee of the appellant company on his personal account, even C if it be for discharging dues of the appellant-company and its Directors, the appellant-company and its Directors cannot be made liable under Section 138. Going by the strict interpretation of the provision the 0 drawer which in the present case is the respondent is liable under Section 138 of the N.I. Act. In the light of the position which the respondent in the present case held, the respondent be made liable under Section 138 of the NI Act, even though the Company had not been named E in the notice or the complaint. There was no necessity for the appellant to prove that the said respondent was incharge of the affairs of the company, by virtue of the position he held. [Paras 9 to 13) [1038-D-G; 1039-C-D; 1040-D-F] F G P. J. Agro Tech Limited and Ors. v. Water Base Limited 2010 (9) SCR 119: (2010) 12 SCC 146; National Small Industries Corporation Ltd. v. Harmeet Singh Paintal and Anr. 2010 (2) SCR 805: (2010) 3 SCC 330; R. Vijayan v. Baby and Anr. 2012 (14) SCR 712: (2012) 1 sec 260 - relied on. Case Law Reference 2010 (9) SCR 119 H 2010 (2) SCR 805 2012 (14) SCR 712 relied on. relied on. relied on. Para 10 Para 12 Para 14 MAINUDDIN ABDUL SATTAR SHAIKH v. V!JAY 1035 D. SALVI CRIMINAL APPELLATE JURISDICTION : Criminal A Appeal No. 1472 of 2009. From the Judgment and Order dated 09.10.2007 in Criminal Application No. 646 of 2006 of the High Court of Judicature at Bombay. B Jatin Zaveri, Neel Kamal Mishra for the Appellant. Manish Mohan, Puja Sarkar, Ugra Shankar Prasad for the Respondent. The Judgment of the Court was delivered by c PINAKI CHANDRA GHOSE, J. 1. This appeal, by special leave, has been filed against the judgment and order dated 9.10.2007 passed by the High Court of Judicature at D Bombay in Criminal Application No.646 of 2006, whereby the High Court has refused leave to appeal against the. judgment of the Trial Court, to the appellant herein. 2. The brief facts necessary to dispose of this appeal E are that in the year 1999, the appellant had booked a flat at Khargar Project proposed to be developed by Mis. Salvi Infrastructure Pvt. Ltd. through the accused-respondent by paying him Rs.74,200/-. In acknowledgment of the said amount, the accused respondent issued two receipts to the F appellant, for a sum of Rs.59,000/- and Rs.14,200/-, respectively. By the year 2003, as alleged by the appellant, the aforesaid project of the respon
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