C482/1660/2019 of SONAL VASDEV Vs STATE OF UTTARAKHAND on 31 December 2021

JUDGMENT

Hon’ble Ravindra Maithani, J.(Oral)

Challenge in this petition is made to the cognizance order dated 14.02.2018, passed in Criminal Case No. 4665 of 2017, Rekha Khera Vs. Sandeep Kumar Vasudev and another, by the court of Additional Chief Judicial Magistrate, IV, Dehradun (“the case”) and order dated 24.06.2019, passed in Misc. Case No. 141 of 2019 , Smt. Sonal Vasdev Vs. State and another, by the court of 3[rd] Additional Sessions Judge, Dehradun (for short, “ the Misc. Case”).

2. Facts are in a very short compass. A complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”) was filed against the petitioner and her husband by the respondent no.2. It is basis of the case. According to it, in discharge of their liability, a cheque amounting to Rs. 7 Lakh, of the joint account of the petitioner and her husband was given, which when presented was dishonoured. After inquiry, on 14.02.2018, the petitioner and her husband both were summoned to answer the accusation under Section 138 of the Act. The petitioner challenged this order in revision. The revision was delayed . Therefore, it was initially registered as Misc. Case. The delay was not condoned by the impugned order dated 24.06.2019. It is also impugned.

3. At the time of hearing of this petition, the complainant is being represented.

4.

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the petitioner would submit that the cheque in question has been issued by her husband of a joint account maintained by the petitioner and her husband. It is argued that the proceedings under Section 138 of the Act may be taken only against the signatory of the cheque and not against any other person.

6. In support of his contention, learned counsel for the petitioner placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Aparna A. Shah Vs. Sheth Developers Private Limited and another, (2013) 8 SCC 71 and Alka Khandu Avhad Vs. Amar Syamprasad Mishra and another, (2021) 4 SCC 675.

7. In the case of Aprarna A. Shah (supra), the Hon’ble Supreme Court in para 13 of the judgment, quoted with the approval, the principles of law, as laid down in the case of Jugesh Sehgal Vs. Shamsher Singh Gogi, (2009) 14 SCC 683, in connection with applicability of Section 138 of the Act. The Court observed as hereunder:- “13. In order to constitute an offence under Section 138 of the NI Act, this Court in Jugesh Sehgal v. Shamsher Singh Gogi [(2009) 14 SCC 683 : (2009) 5 SCC (Civ) 482 : (2010) 2 SCC (Cri) 218] noted the following ingredients which are required to be fulfilled: (SCC pp. 687-88, para 13)

“(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of 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 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 NI Act. It is settled law that strict interpretation is required to be given to penal statutes.”

8. Further in para 28, the Court categorically held that “under Section 138 of the NI 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 NI Act which would have no application in the case on hand.”

9. In the case of Alka Khandu (supra), the Hon’ble Supreme Court observed “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”

10. Learned counsel for the petitioner would submit that the revisional court in the Misc. Case erred in not condoning the delay because the petitioner could not challenge the summoning order due to delayed advised. It is argued that it is a pure question of law. Ultimately, the petitioner has to succeed. Therefore, it is expedient in the interest of justice, that an interference be made and the proceeding against the petitioner be quashed.

11. Learned counsel for the complainant very fairly concedes that the cheque was signed by the husband of the petitioner and it was not signed by the petitioner. He also admits that it is not a case, which may attract the provisions of Section 141 of the Act. Learned counsel for the complainant would submit that as per the complaint, the petitioner has joint liability.

12. Section 138 of the Act is applicable only when a cheque is drawn by a person on an account maintained by him. This may be done by signing the cheque.

13. The petitioner did not sign the cheque. Her husband had signed it. Even if, for the sake of arguments, it is accepted that the petitioner was jointly liable to pay the debt, in view of the settled law, as laid down in the case of Alka Khandu (supra), the petitioner may not be proceeded under Section 138 of the Act because she did not sign the cheque. The facts of this case are identical to the case of Aparna Shah (supra). A joint account holder cannot be prosecuted unless the cheque is signed by him. This is what the instant case is. Therefore, this Court is of the view that the petitioner ought not to have been proceeded under Section 138 of the Act.

14. Accordingly, the cognizance order dated 14.02.2018 passed in the case and order dated 24.06.2019 passed in the misc. case as well as the entire proceedings of the case deserve to be quashed qua the petitioner and the petition allowed.

15. The petition is allowed.

16. The cognizance order dated 14.02.2018 and order dated 24.06.2019 as well as the entire proceedings of the Case, qua the petitioner are hereby quashed.

(Ravindra Maithani, J.)

31.12.2021

Jitendra