ORDER: This criminal original petition is filed to quash the summon issued to the petitioner by the learned Judicial Magistrate No.V, Coimbatore in C.C.No.836 of 2004.

2. The petitioner is accused No.2 in the above C.C.No.836 of 2004 on the file of Judicial Magistrate No.V, Coimbatore, which was filed by the respondent/complainant, namely, LIC Housing Finance Limited represented by the Deputy Manager, Coimbatore against this petitioner and her husband Mohamed Ansar, who figured as 1st accused. That case was initiated for an offence under Sec.138 of Negotiable Instruments Act. The drawer of the cheques was Mohamed Ansar, the husband of the petitioner. Those two cheques were dated 31.5.2004 each for a sum of Rs.1,00,000. That was issued for the discharge of the loan raised by deceased Abdul Khader, the father of Mohamed Ansar (accused No.1). Subsequent to the death of Abdul Khader, both these accused including this petitioner, undertook to discharge the said loan. Thus the liability was shown to have arisen upon this petitioner and her husband following the death of Abdul Khader, father of Mohamed Ansar (1st accused), who raised the loan.

3. It is in pursuance of this, those two cheques were drawn by Mohamed Ansar. They were cheque Nos.921164 and 921165 each dated 31.5.2004 issued to ICICI Bank Limited, Trichy Road,Coimbatore-18, wherein there was a joint account for both the accused. Although the cheques were drawn only by the 1st accused, the legality of the inclusion of this petitioner as second accused in that complaint under Sec.138 of Negotiable Instruments Act and the issuance of summons to petitioner by the Judicial Magistrate V, Coimbatore are being challenged.

4. Counsel for the petitioner drew my attention to Sec.7 of Negotiable Instruments Act, which defines drawer, as follows:

“The maker of a bill of exchange or cheque is called the”drawer“.

So it was contended that though cheques were drawn to a Joint Account to be operated as E or S, inasmuch as the petitioner was not drawer of cheque, no liability under Sec.138 of Negotiable Instruments Act can be fastened upon the petitioner/2nd accused.

5. In this connection, counsel for the petitioner relied upon the decision reported in G.Surya Prabhavathi v. Nekkanti Subrahmanyeswara Rao and another,(1998)3 Crimes 543, wherein a private complaint was filed against the petitioner/3rd accused and others alleging that accused Nos.1 and 2 constitute a joint Hindu family; that 1st accused was Manager of that family and the petitioner was the wife of 1st accused; it was alleged that accused 1 to 3 obtained financial accommodation and purchased a car under the name of petitioner/3rd accused and 1st accused issued a post-dated cheque, which was subsequently found dishonoured. A notice was issued to accused 1 to 3 demanding the amount; the learned Magistrate originally dismissed the complaint without recording the sworn statement against accused 2 and 3; against which, complainant filed revision; it was allowed by the learned Sessions Judge, directing the Magistrate to record the sworn statement and then pass appropriate orders; on behalf of the respondent complainant, it was contended that 3rd accused is the wife of 1st accused, who issued the cheque and the car was purchased in her name after obtaining loan from the complainant and the cheque was issued to discharge the liability; hence argument was advanced that the prosecution was maintainable; after elaborately going into the provision of Sec.138 of Negotiable Instruments Act and its Explanation, it was found that penal proceedings should be construed strictly and the emphasis in the said provision is on the words”such person“. It is manifest from the expression of the words used in Sec.138 of the Act, that”such person shall be deemed to have committed the offence" relate to the person who has drawn the cheque in favour of the payee, and if the said cheque is returned unpaid on account of the conditions mentioned under Sec.138, such p

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