A joint account holder cannot be prosecuted under Section 138 of the NI Act unless the cheque is signed by each and every joint account holder.

ORDER :

1. This Criminal Petition, under Section 482 of the Code of Criminal Procedure 1973, is filed by A2 in C.C. No. 97 of 2018 pending on the file of the Spl. Judicial Magistrate of First Class, Mobile Court, Chittoor, to quash the proceedings in the above Calendar Case.

2. Brief facts of the case are as follows:

The respondent No. 1 herein filed complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I. Act”) in the Court below against A1 and A2, who are husband and wife respectively. A2 is the petitioner herein. It is the case of the complainant/respondent No. 1 herein that both A1 and A2 have jointly availed loans from it, on various dates from 13.9.2010 to 08.9.2012 to a tune of Rs. 30,00,000/- (Rupees Thirty Lakhs only) in total and for the repayment of the same, they have executed a demand promissory note on 08.9.2012. On demand for repayment, the Accused No. 1 who is the husband of A2 the petitioner herein issued a cheque for Rs. 32,50,000/- (Rupees Thirty Two Lakhs Fifty Thousand only) drawn from their joint account maintained in Karoor Vysya Bank Limited on 12.8.2015. The said cheque when was presented by the complainant (R1 herein) in its bank for collection on 09.10.2015 for the second time, after it was returned unpaid earlier, it is once again returned with an endorsement “funds insufficient.” Later after complying with the essential conditions of Section 138 of the Negotiable Instruments, Act, the complainant filed the complaint against the petitioner (A2) and her husband (A1) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I. Act”). The learned Magistrate by taking cognizance of the offence punishable under Section 138 of the N.I. Act registered the case in C.C. No. 97 of 2018 and issued summons to the petitioner (A2) and her husband (A1).

3. Aggrieved by the order of issuing summons by taking cognizance of the offence punishable under Section 138 r/w 142 of the N.I. Act by the learned Magistrate against the petitioner herein, this quash petition is filed.

4. The main ground urged for the petitioner is that she is not signatory to the cheque, which was dishonoured and she also did not issue the said cheque and therefore the complaint as well as Calendar Case Proceedings are not maintainable against her.

5. Heard the learned counsel for the petitioner, learned counsel for the respondent No. 1 and the learned Special Assistant Public Prosecutor for the respondent No. 2.

6. Learned counsel for the petitioner contended that even if accepted the entire accusations are true, the offence under Section 138 of the N.I. Act is not attracted as against the petitioner herein for the reason that the petitioner is not a signatory to the dishonoured cheque. According to the complaint filed before the learned trial Court, it is A1 therein that issued the cheque but not the petitioner herein. Therefore, Section 138 of the N.I. Act is not attracted in this case since it reads that the person who issues the cheque for discharge of a legally enforceable debt alone would be liable for punishment if the said cheque is dishonoured. Therefore, he prays to quash the proceedings against the petitioner herein.

7. Learned counsel for the respondent No. 1 submitted that the cheque dishonoured in this case was though signed by A1 who is none else than husband of the petitioner herein (A2), but it was towards discharge of a debt borrowed jointly by both the accused. It is also contended that the cheque was drawn from out of a joint account maintained by both the accused and as such in view of Section 141 of the N.I. Act, they come under the expression the “other association of individuals” found in the above provision. Therefore, both A1 and A2 who are the husband and wife respectively can be prosecuted and there is no illegality in proceeding against them under Section 138 of the N.I. Act by the learned trial Court. Hence, he prays to