The judgment established the importance of the drawing of the cheque by a person as an essential element of the offence under Section 138 of the Negotiable Instrument Act, and highlighted the need for specific averments to establish individual liability.

1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 ( Crl. PC ) filed by the petitioner seeking quashing of the Complaint No. 431/1/06 titled as Genesis Educational Foundation v. Rajesh Berry and Another under Section 138 of the Negotiable Instrument Act, 1881 ( Act ) .

2. The complaint sterns from a dishonoured cheque dated 20th January, 2006 drawn on the United Western Bank Limited by Shri Rajesh Berry, husband of the petitioner in favour of the complainant Genesis Educational Foundation in the sum of Rs.6,75,00,000/-. The case of the petitioner is that the offence under Section 138 of the Act cannot be said to have been made out against the petitioner only on the ground that she was a joint account holder along with her husband. She has admittedly neither drawn nor issued the cheque in question and therefore the complaint against her was not maintainable.

3. The petitioner further refers to the wording of Section 138 of the Act to contend that the drawing of the cheque by a person is an essential ingredient of the offence. He submits that this is not a case of an offence having been committed by a company to which Section 141 of the Act would apply.

4. Learned counsel for the complainant has been heard at great length. He refers to Section 11 of the Indian Penal Code ( IPC ) to contend that a word person in Section 138 of the Act contemplates a plurality of persons. In this case since the account is a joint account and contemplates the accused both the petitioner as well as her husband operating it. He refers to a certificate dated 28th August, 2006 issued by the United Western Bank Limited to indicate that the account initially was in the name of the petitioner here and subsequently the name of her husband was added. On the strength of this document, it is submitted on behalf of the complainant that in fact it is the petitioner here who is the main account holder. Reliance is also placed upon a judgment of the Madhya Pradesh High Court in Ajit v. Smt. Kirti 1(2005)Banking Cases 315 in which it has been held that a joint account holder will be equally liable for an offence under Section 138 of the Act notwithstanding that such person did not draw the cheque in question which was dishonoured.

5. Both the learned counsel for the parties have referred extensively to several paragraphs of the complaint in support of their respective stands. According to the petitioner, the entire thrust of the complaint is only with regard to Mr. Rajesh Berry, husband of the petitioner and not the petitioner here. Reference is, in particular, made to paragraphs 6 and 12 to contend that there is no specific averment vis-a-vis the petitioner here. On the other hand learned counsel for the complainant read the complaint which refers to the accused generally and imputes to them knowledge of the transactions in question to both of them.

6. In the first place there are certain facts which are not disputed. The cheque in question which stood dishonoured, was issued under the signature of Mr. Rajesh Berry. There is no seal of any group or association of persons or any registered body on behalf of whom Mr. Rajesh Berry was authorized to sign the said cheque. It is not dispute that the account was a joint account with the United Western Bank Limited. The relevant paragraph of the complaint pertaining to the issuance of cheque in question reads as under: 12. The accused pursuant to receiving the above said notice, approached the complainant society on or around 18th January, 2006 to settle the matter by offering Rs.6,75,00,000/- as full and final settlement towards the above said land. Although the value of the land was much higher than what was offered by the accused, however, as the accused assured the complainant society that the said amount of Rs.6,75,00,000/- would be paid at once, therefore, the complainant society accepted the said offer. The accused accordingly issued a Cheque No. 35