TMI Blog2017 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... SHAH, ADVOCATE ORAL ORDER RULE returnable forthwith. Ms.Thakore, the learned APP waives service of notice of rule for and on behalf of the respondent no.1 State of Gujarat. Mr.Dharmesh Shah, the learned counsel waives service of notice of rule for and on behalf of the respondent no.2 original complainant. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant seeks to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No.1746 of 2014 pending in the Court of the learned Metropolitan Magistrate, Negotiable Instruments Court No.36, Ahmedabad. It appears from the materials on record that the husband of the applicant herein, viz. Viratkumar Babulal Shah, availed of the loan facility from the respondent no.2, a finance company. Indisputably, the loan agreement has been signed jointly, i.e. by the husband as well as the applicant herself. In discharge of the loan liability, the husband issued a cheque drawn in favour of the respondent no.2 dated 5th February 2013 for the amount of ₹ 88,673=00. The said cheque came to be dishonoured due to funds insufficient in the account ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. Considering the language used in Section 138 and taking note of background agreement pursuant to which a cheque is issued by more than one person, we are of the view that it is only the drawer of the cheque who can be made liable for the penal action under the provisions of the N.I. Act. It is settled law that strict interpretation is required to be given to penal statutes. 9. In Jugesh Sehgal (supra), after noting the ingredients for attracting Section 138 on the facts of the case, this Court concluded that there is no case to proceed under Section 138 of the Act. In that case, on 20.01.2001, the complainant filed an FIR against all the accused for the offence under Sections 420, 467, 468, 471 and 406 of the Indian Penal Code, 1860 (hereinafter referred to as IPC ) and there was hardly any dispute that the cheque, subject-matter of the complaint under Section 138 of the N.I. Act, had not been drawn by the appellant on an account maintained by him in Indian Bank, Sonepat Branch. In the light of the ingredients required to be fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns which have to be satisfied before the liability can be extended. Inasmuch as the provision creates a criminal liability, the conditions have to be strictly complied with. In other words, the persons who had nothing to do with the matter, need not be roped in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the acts done in the name of the company, are sought to be made personally liable for the acts which result in criminal action being taken against the company. In other words, it makes every person who, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of business of the company, as well as the company, liable for the offence. It is true that the proviso to sub-section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused being the company itself. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove submission is liable to be rejected. Since, this expression has not been defined, the same has to be interpreted ejusdem generis having regard to the purpose of the principle of vicarious liability incorporated in Section 141. The terms complaint , persons association of persons company and directors have been explained by this Court in Raghu Lakshminarayanan v. Fine Tubes (2007) 5 SCC 103 : (AIR 2007 SC 1634 : 2007 AIR SCW 2460). 16. The above discussion with reference to Section 138 and the materials culled out from the statutory notice, reply, copy of the complaint, order, issuance of process etc., clearly show that only the drawer of the cheque being responsible for the same. 17. In addition to our conclusion, it is useful to refer some of the decisions rendered by various High Courts on this issue. 18. Learned single Judge of the Madras High Court in Devendra Pundir v. Rajendra Prasad Maurya, Proprietor, Satyamev Exports S/o. Sri Rama Shankar Maurya, 2008 Criminal Law Journal 777, following decisions of this Court, has concluded thus: 7. This Court is of the considered view that the above proposition of law laid down by the Hon'ble Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermitted the complainant to proceed further insofar as against others. 21. In the light of the principles as discussed in the earlier paras, we fully endorse the view expressed by the learned Judges of the Madras, Delhi and Punjab and Haryana High Courts. 22. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 23. We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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