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Offence under Section 138, unlike other offences under IPC, is person specific

In N. Harihara Krishnan Vs J. Thomas, the Supreme Court has pronounced a point of law that the offence under Section 138 of Negotiable Instruments Act is person specific. It was also clarified that the general concept under Cr.P.C that cognizance was taken against the offence and not against
the offender was not appropriate in prosecution under NI Act.

The complainant in the case was issued a cheque, which was signed by one Harihara Krishnan. The cheque was drawn allegedly in discharge of balance sale consideration payable by M/s Norton Granites Pvt. Ltd. However, the cheque was in fact drawn on account of another private limited company, M/s Dakshin Granites Pvt.Ltd., in which also Harihara Krishnan was a director. The cheque was dishonoured for want of funds.

Under the impression that the cheque was drawn on the account of Norton Granites Pvt. Ltd  presumably because consideration was allegedly due from them), the complaint was filed only arraying Harihara Krishnan as an accused, in his capacity as director of Norton Ltd. Later realizing the folly, the prosecution sought to summon Dakshin Pvt.Ltd. as an accused invoking powers under Seciton 319 Cr.P.C.

The learned Magistate allowed the application under Section 319. The revision filed against it by Harihara Krishnan was dismissed by the High Court. The High Court reasoned that there was no delay in adding Dakshin as an accused, since cognizance of offence was already taken. The reasoning of the High Court was on the ground that cognizance is taken of the offence and not of the offender, and hence there was no impediment in adding an additional accused once the cognizance was already taken. However, the Supreme Court held that the reasoning was erroneous.


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