Only the drawer of the cheque can be prosecuted under Section 138 of the Negotiable Instruments Act, and joint account holders cannot be held liable unless the cheque has been signed by each and every person who is a joint account holder.

ORDER :

1. Though notice was served to respondent No.2 but, it was refused.

2. Rule returnable forthwith. Mr. Soham Joshi, learned APP waives service of notice of rule for and on behalf of the respondent No.1-State.

3. By way of present application, applicant No.2 herein has prayed for quashing and setting aside the proceedings arising from Criminal Case No. 51616 of 2015 pending before the Court of learned 12th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara dated 28.9.2015 under the provision of Section 138 of Negotiable Instruments Act.

4. The brief facts of the complaint are as under:-

4.1 Respondent No.2-original complainant, Managing Partner of M/s. Priyasha Money Lending Company filed a complaint on 28.9.2015 inter alia contending that the complainant firm had lent Rs.16,00,000/- to the applicant No.1 as the applicant No. 1 was in need of money for the purpose of his business. It is case of the complainant that against the outstanding amount of Rs.6,00,000/-, applicant No.2 had paid the amount through cheque dated 23.8.2014. Further the complainant alleged that Rs.24,96,320 was outstanding towards the amount lent by the complainant. It is the further case of the complainant that towards the remaining payment of Rs.24,96,320/-, applicant No.1 had issued a cheque of Rs.24,96,320/- being Cheque No. 313757 dated 12.6.2015 of H.D.F.C. Bank, Alkapuri Society Branch. The said cheqie was dishonoured on 21.7.2015 with an endorsement of “Account Closed”. The complainant through his firm issued a legal notice dated 12.8.2015 under Section 138 of the Negotiable Instrument Act, 1881. Though, legal notice was issued dated 12.8.2015 to the applicants and applicants was not replied to the said notice. Thereafter, the complainant was constrained to approach the Court of learned 12th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara by filing criminal complaint against the applicants for the reason that the drawing cheque dated 12.6.2015 was issued by the applicant No.1 and the said cheque came to be dishonoured by the concerned Bank dated 21.7.2015 and process came to be issued qua present applicants. Being aggrieved by the issuance of process by the concerned Court, the applicants herein has constrained to approach this Court for further relief has stated above merely on the ground that the application came to be withdrawn qua applicant No.1 vide order dated 6.5.2016 and notice came to be issued qua applicant No.2 and further proceedings came to be stayed qua applicant No.2.

5. Heard Mr. Dhruvik K. Patel, learned advocate for the applicant No.2 and Mr. Soham Joshi, learned APP for the respondent No.1-State.

6. Learned advocate for the applicant No.2 submits that applicant No.2 herein is neither signatory to the said cheque nor the cheque is drawn by him as well as account maintained by him with the banker as required under the provisions of Section 138 of Negotiable Instruments Act.

7. This Court has perused the documents produced on record the cheque in question dated 12.4.2014 which is duly produced at Annexure “B” of the present application which is duly signed by the applicant No.1 i.e. Sandeep N. Parmar. The return memo of cheque is duly produced at Annexure “C” dated 21.7.2015. The certificate issued by the concerned Bank stating that the cheque in question was issued by the applicant No.1 i.e. Sandeep N. Parmar is also produced at Annexure “F” page 23.

8. At this stage, it is apposite to refer to the following position of law:-

(a) In the case of Aparna A. Shah Vs. Sheth Developers Pvt. Ltd. reported in (2013) 8 SCC 71, paragraphs 27 & 28 read thus:-

"27. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the ap