Is a person who has not signed the cheque, nevertheless a joint holder of the account which can be operated by any of the account holders, culpably liable under Sec. 138 of the Negotiable Instruments Act? This is the short question that arises for determination in this revision petition.

2. The petitioner-a woman, has a joint account with the bank. She and her husband are competent to operate the account separately. The cheque in question was issued by her husband, the 1st accused. Such cheque was issued to the complainant for the discharge of a liability of the 1st accused. The cheque was dishonoured on the ground of insufficiency of funds. Notice of demand issued to both the accused did not succeed in securing payment. The petitioner herein (the 2nd accused) specifically asserted in the reply notice that she has no liability under Sec. 138 of the N.I.Act. The complainant filed a private complaint to initiate Criminal proceedings against both the accused under Sec. 138 of the N.I. Act. The learned Magistrate took cognizance. The petitioner rushed to this Court with Crl.M.C.No.3720/01 to quash the proceedings against her. That petition was dismissed with the observation that the petitioner must urge the relevant contentions before the court before which the complaint was pending. The petitioner raised this contention before the learned Magistrate and claimed that proceedings against her may be dropped invoking the dictum in K.M.Mathew v. State of Kerala (1992 (1) KLT 1). Her prayer was rejected. It is against this order that the petitioner has come before this Court.

3. A look at the law first. Sec.138 of the N.I. Act reads as follows:

"138. Dishonour of cheque for insufficiency etc., of funds in the account. 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 and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-

(a) the 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.

(b) the payee or the holder in due course of the cheque, as the case may be 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 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.

Explanation.-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."

(emphasis supplied)

It is evident from a plain reading of the Section that in order to be deemed to be liable under Sec. 138 of the N.I. Act the cheque must be one drawn by the indictee on an account maintained by him. He becomes liable only if he, the drawer of the cheque, is given notice as insisted by Sec. 138(b) of the N.I. Act and he, the drawer, does not make payment within the period stipulated under Sec. 138(c) of the N.I. Act. The conclusion appears to be inevitable that only a drawer of the cheque can be held liable under Sec. 138 of the N.I. Act.

4. The expression "drawer" is