Latest - TMI e-Newsletter
New User/ Regiser
2022 (9) TMI 671 - Indian Laws
Dishonor of Cheque - existence of lawful liability or debt towards the petitioner or not - joint or vicarious liability of a person under section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- The petitioner is not the drawer of the cheque in question. The trial court misdirected itself while passing the impugned order. The petitioner is not a joint account holder or vicariously liable with Amrit Sandhu Coster. The cheque in question was not issued by the petitioner but was issued by the sister of the petitioner namely Amrit Sandhu Coster. It was prayed that impugned order be set aside.
The legal issue pertaining to joint or vicarious liability of a person under section 138 of the Negotiable Instruments Act, 1881 has been considered by the various High Courts and the Supreme Court. In Gita Berry V Genesis Educational Foundation, [2008 (1) TMI 978 - DELHI HIGH COURT] decided by a Coordinate Bench of this court, the petitioner/wife filed a petition under Section 482 of the Code seeking quashing of the complaint filed under Section 138 of the Negotiable Instrument Act,1881 on the ground that she was a joint account holder along with her husband. She has neither drawn nor issued the cheque in question and, therefore, according to her, the complaint against her was not maintainable. It was observed that the complaint was only under section 138 of the Act and nothing was elicited from the complaint to the effect that the petitioner was responsible for the cheque in question and accordingly proceedings were quashed.
The Supreme Court in Aparna A. Shah V M/s Sheth Developers Pvt. Ltd. &another, [2013 (7) TMI 718 - SUPREME COURT] endorsed views expressed by the Madras, Delhi and Punjab & Haryana High Courts and held that it is only the drawer of the cheque who can be prosecuted under section 138 of the Act.
The case of the respondent no 2 is that the petitioner and Amrit Sandhu Coster in discharge of their liability towards the respondent no 2 handed over cheque in question and promised that the said cheque would be obliged on presentation to discharge their legally enforceable debt - The petitioner is not holder of account bearing no 90112010051035 in Syndicate Bank and is not operational in the name of the petitioner but is operational in name of Amrit Sandhu Coster. Amrit Sandhu Coster in notice under section 251 also admitted that she issued the cheque in question to the respondent no 2 in the year 2011 for my food court business vide proceedings dated 06.02.2019. The liability regarding dishonouring of cheque in question cannot be fastened on the petitioner.
The impugned order cannot be legally sustained qua the petitioner and as such the petition is allowed and impugned order is set aside qua the petitioner - Petition allowed.