Under Section 138 of the Negotiable Instruments Act, only the drawer of the cheque can be prosecuted, and joint account holders who are not signatories to the cheque cannot be held liable for a dishonored cheque issued by another joint account holder.

N.S. SHEKHAWAT,  J.

1. The petitioner has filed the present petition under Section 482 Cr.P.C. with a prayer to quash the complaint No. NACT/90/2020 dated 16.01.2020 under Section under Section 138 of the Negotiable Instruments Act 1881 (hereinafter to be referred as 'the Act') (Annexure P-1) pending in the Court of JMFC, SAS Nagar, District Court, Mohali, titled as “Tanu Bathla Vs. Raman Kumar Arora and another” and the summoning order dated 01.02.2020 (Annexure P-2) and all subsequent proceedings arising therefrom.

2. Learned counsel for the petitioner contends that the proceedings under Section 138 of the Act were initiated by the respondent against the petitioner and her husband Raman Kumar Arora by alleging that loan of Rs. 5,00,000/- was taken by the petitioner and her husband from the respondent and in order to pay the loan amount of Rs. 5,00,000/-, a cheque bearing No. 000085 dated 22.11.2019 drawn on Punjab and Sind Bank, New Delhi, Rani Bagh Branch, was handed over to the respondent. The said cheque was dishonoured on presentation by the respondent with his banker with the remark “insufficient funds”. Thereafter, a statutory notice was sent by the respondent to the petitioners, however, no payment was made to the respondent. Consequently, the respondent filed a complaint under Section 138 of the Act (Annexure P-1) against the petitioner and her husband Raman Kumar Arora. Vide order dated 01.02.2020 (Annexure P-2), the trial Court took cognizance of the offence and summons were issued to the petitioner and her husband. On receipt of the notice, the petitioner appeared before the trial Court and notice of accusation (Annexure P-3) was served on her as well as her husband.

3. Learned counsel for the petitioner further contends that the petitioner has been arrayed as accused in the present case only on the ground that the petitioner and her husband are joint account holders in the bank account, from which, the said cheque has been issued, whereas, the petitioner was not the signatory to the cheque in question. Learned counsel contends that the petitioner could not have been summoned in the present case only on the ground that the cheque in question was issued from the joint account of the petitioner and her husband. Learned counsel for the petitioner has relied upon the law laid down by the Hon'ble Supreme Court in the matters of Aparna A Shah Vs. M/s Sheth Developers P. Ltd. And another 2013 (8) SCC 71 and Alka Khandu Avhad Vs. Amar Syamprasad Mishra 2021 (4) SCC 675 to contend that it is the drawer of the cheque, who can be prosecuted.

4. In the present case, admittedly, the petitioner was not drawer of the cheque and had not signed the cheque and the cheque had been signed by her husband. Thus, by completely ignoring the facts of the case and the settled law, the petitioner has been wrongly summoned by the trial Court.

5. On the other hand, learned counsel appearing on behalf of the respondent/complainant has opposed the submissions made by the learned counsel for the petitioner. However, he was not in a position to controvert the fact that the petitioner was not a signatory to the cheque, which is the subject matter of the present complaint.

6. I have heard learned counsel for the parties and perused the record.

7. Section 138 of the Act refers to the payee or holder in due course of the cheque. It indicates that after the dishonour of the cheque, the drawer of the same could be brought to the dock for the fault committed by him. Section 138 of the Act reads as under:-

“138, - Dishonour of cheque for insufficiency, etc., of funds in the account mere 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 pet of 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 e