The petitioners 1 and 2/A.1 and A.2 are accused of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, the Act). A.2 is wife of A.1. Subject matter of the complaint relates to dishonour of cheque dated 31.10.2008 drawn by A.1 as proprietor of A.R.R.Builders and Developers in favour of the complainant/2nd respondent. It appears that the amount of Rs.1 crore covered by the cheque represents refund of deposit amount made in connection with lease taken by the complainant of the property belonging to A.1 and A.2. Irrespective of debt/liability for which the dishonoured cheque was drawn, in an offence under Section 138 of the Act, it has to be seen who is the person who is alleged to have committed the offence. As drawer of the cheque, A.1 alone is liable for the consequence of dishonour of the said cheque. Even though it is alleged that A.2 is also partner of A.R.R.Builders and Developers, the cheque falsifies the said allegation. The cheque reads that A.1 signed the cheque as proprietor of A.R.R.Builders and Developers. When the concern is proprietory concern, there is no question of any partners in it. Therefore, the complaint against the 2nd petitioner/A.2 is nothing short of abuse of process of law.
