TMI Blog2022 (1) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque. In the instant case, it is evident from the entire material placed on record, particularly, the complaints filed by the respondent No.2/complainant under Section 138 of N.I. Act r/w Sec.200 Cr.P.C, the petitioner/A.2 is merely a joint account holder and she is not the signatory to the subject cheques - The Courts below erred in taking cognizance against the petitioner/A.2, particularly, when she is not a signatory to the disputed cheques. So the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No.2/ complainant conceded that the petitioner/A.2 is not a signatory to the subject cheques but contended that the petitioner/A.2 is aware of the money transactions and handing over of the subject cheques. It is submitted that the petitioner/A.2 is maintaining joint account with her husband i.e, A.1 and the subject cheques relate to the said joint account only. The petitioner/A.2 has knowledge of the subject transactions and most of the amounts were paid to her account only. In view of these circumstances, the Courts below rightly took cognizance of the offence under Section 138 of N.I.Act against the petitioner/A.2 along with A.1. It is further submitted that the trial in the subject C.Cs has already commenced and hence, there is no irregularity in proceeding against the petitioner/A.2 for the offence under Section 138 of N.I.Act and ultimately prayed to dismiss the Criminal Petitions. 6. The learned Assistant Public Prosecutor supported the arguments advanced by the learned counsel for respondent No.2/ complainant and ultimately prayed to dismiss the Criminal Petitions. 7. In view of the above submissions made by both sides, the point for determination in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As per the mandate given under Section 138 of N.I Act, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence. 10. In Alka Khandu Avhad s case (supra), cited by the learned counsel for the petitioner/A.2, the Hon ble Apex Court observed as follows: Para 7: On a fair reading o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case except in case of Section 141 of the N.I. Act be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
