9911796707
TMI Blog2021 (6) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... returnable forthwith. Learned Additional Public Prosecutor as well as learned Advocate Ms Rana waives service of Rule on behalf of the respondents. 3. With the consent of parties this application is taken up for final hearing. The applicant herein is aggrieved by the initiation of proceedings under Section 138 of the Negotiable Instruments Act against the applicant by way of criminal case No. 4313 of 2018, pending before the Judicial Magistrate, First Class, Gandhinagar. The case of the applicant before this Court is that the applicant had not signed the cheque in question and, therefore, the applicant would not be liable to be prosecuted under Section 138 of the Negotiable Instruments Act. 4. Learned Advocate Shri Patel, in support of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this stage. 7. Heard learned Advocate for the parties and perused the record. 8. The only question which arises for adjudication of this Court is that if the applicant is not a signatory to the subject cheque then would a proceeding under Section 138 lie against him and in view of the lacuna on the face of such a complaint would it be appropriate for this Court to interfere in a proceeding under Section 482 of the Code of Criminal Procedure. 8.1 In the decision of Alka Khandu Avhad (supra), the Supreme Court was dealing with a similar situation and whereas the Supreme Court in the said decision has held as thus : 6. We have heard learned counsel appearing on behalf of the respective parties at length, considered material on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, a person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt, but if such a person who might have been liable to pay the debt j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act. The criminal complaint filed against 8 the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act, therefore, can be said to be abuse of process of law and therefore the same is required to be quashed and set aside. 8. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order dated 21.08.2019 passed by the High Court in Criminal Writ Petition No. 2595 of 2019 refusing to quash the criminal complaint against the appellant for the offence punishable under Section 138 read with Section 141 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under such circumstances, in the considered opinion of this Court such fact being raised by the applicant herein cannot be treated as a defense which could be raised by the applicant before the learned Magistrate. Thus, when facts are not disputed and where there is an apparent legal bar in permitting the proceedings to continue, this Court would be justified in invoking jurisdiction under Section 482 of the Code of Criminal Procedure to quash the complaint. 11. In view of the aforesaid discussion and findings, this Court is of the considered opinion that the proceedings under Section 138 of the Negotiable Instruments Act cannot be permitted to continue against the present applicant hence, Criminal case No. 4313 of 2018 under the Negotiab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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