TMI Blog2021 (11) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cheque. A prosecution under Section 138 of the N.I. Act is ultimately to bring the offender to suffer penal consequences. It appears that the present petitioner has been joined in criminal proceedings just as being the joint account holder with the husband. As per the facts of the case, the Cheque was issued by accused no.1 in his personal capacity. The wife has no business relationship, nor was having any transaction with the complainant on her personal basis, thus, she cannot be made vicariously liable for the act of the husband. It appears that the learned trial Court Judge has not considered the averments of the complaint and has not examined the status of the proposed accused prior to order for issuance of summons against the present petitioner, who was joined in the criminal proceedings merely under the status of being wife of the accused no.1 and holding a joint account with the husband - The proceedings under Section 138 of the N.I. Act cannot be misused by any of the parties. The culpability is attached with the dishonour of the Cheque and it is only the drawer of the Cheque who can be made accused in any proceedings under Section 138 of the N.I. Act. From the bare re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent no.2 in his Corporation Bank, Sudan Branch, Account No.346000101000161, which was dishonoured on 28.12.2018 with endorsement Today s Opening Balance Insufficient . Thereafter, Demand Notice under Section 138 of the N.I. Act was sent through R.P.A.D., which was received by the accused on 12.01.2019. The said legal notice was replied on 29.01.2019, whereby the accused denied the contention raised by the present respondent no.2 in his Demand Notice and stated of taking a loan of ₹ 1,00,000/- in the month of November, 2015 for a period of one year at the monthly interest of 5%. It is alleged that the present respondent no.2 had asked accused to give Cheques by way of security and against the loan of ₹ 1,00,000/-, the accused had paid ₹ 1,60,000/- to respondent no.2, but the said Cheques which were given by way of security were not returned and were deposited in the Bank to pressurize the accused. 3.2 It is contended that Criminal Case No.825 of 2019 has been filed in the Court of 6th Additional C.J.M. and Summons were issued to both the accused vide order dated 18.03.2019. The present petitioner has contended that she is not the signatory to the dishonoured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of a certain amount of money to another person from out that account. (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned ingredients are satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability . 9.1 The plain reading of Section 138 makes it clear that it has to be strictly interpreted, as penal provision is made for commission of offence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability is attached with the dishonour of the Cheque and it is only the drawer of the Cheque who can be made accused in any proceedings under Section 138 of the N.I. Act. From the bare reading of Section 138 of the N.I. Act, it transpires that the liability of the drawer of the Cheque, who has issued the Cheque from the joint account maintained by him and his wife, does not specifically bear any implication to make the wife equally liable when the Cheque was drawn by her husband, and therefore, no vicarious liability can be fastened on the holder of a joint account, by a mere fact that the dishonoured cheque was issued by the drawer of such a cheque from the same bank account. The analogy of section 141 of the N.I. Act, which deals with the offences of the company, cannot be stretched to make the joint holder of a bank account vicariously liable to face the prosecution under Section 138 of the N.I. Act. The trial against the present petitioner in Criminal Case No.825 of 2019 would be abuse of process of Court. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the applica ..... 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