Under Section 138 of the Negotiable Instruments Act, only the drawer of a cheque can be prosecuted; improper notice destroys maintainability.

JUDGMENT :

Harpreet Singh Brar, J.

This order shall decide both the above mentioned petitions as they arise from identical factual matrix. However, for the sake of brevity, the facts are taken from CRM-M-54012-2023.

2. The present petition has been preferred under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr.P.C.’) seeking quashing of complaint bearing No. 169 of 2019 titled ‘ Kulwant Singh vs. Jasbir Kaur and Another ’ under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter ‘NI Act’) as well as summoning order dated 19.09.2022 (Annexure P-5) passed by learned Judicial Magistrate 1st Class, Samrala and all subsequent proceedings arising therefrom.

3. Briefly, the facts, as alleged, are that in the Month of May, 2018, the petitioner approached the respondent for a friendly loan of Rs.7,50,000/- to expand his business. At the time of taking the said loan, the petitioner promised to return the same in the month of April, 2019. The petitioner kept delaying the repayment of the loan but ultimately, issued a cheque bearing no. 047132 dated 12.06.2019 for an amount of Rs.7,50,000/-. However, on presentation for encashment, the same was returned vide memo dated 13.06.2019 with the remarks ‘funds insufficient.’ Subsequently, a legal notice dated 05.07.2019 was served on the petitioner. However, it was later realised by the counsel for the respondent that the notice was erroneously sent in the name of one Rishi Jain. Accordingly, a corrigendum-cum-rejoinder dated 24.07.2019 was issued to the petitioner and his counsel. Since the petitioner failed to repay the said amount in the stipulated period, the complaint (supra) was instituted.

4. Learned counsel for the petitioner inter alia contends that the cheque was issued by Jasbir Kaur i.e. the wife of the petitioner (petitioner in CRM-M-10122-2024) under her signature. Moreover, the disputed cheque was one of the seven cheques given by her to one Inderjit Kaur, as security while joining her chit-fund committee. Inderjit Kaur has misused the cheque given to her by Jasbir Kaur by filling the name of Kulwant Singh in it. However, since the petitioner is not the drawer of the cheque, the complaint is not maintainable against him. The petitioner has only been summoned by the learned trial Court because he holds the account, on which the disputed cheque was drawn, jointly with his wife. Further still, the legal notice was issued in the name of Rishi Jain and there is no provision in the NI Act that allows issuance of corrigendum to correct the name of the complainant. Be that as it may, the corrigendum was issued on 24.07.2019, which is beyond the 15 days period from receiving the memo from the bank. Learned counsel places reliance on the judgment rendered by the Hon’ble Supreme Court in Alka Khandu Avhad vs. Amar Syamprasad Misra and another , 2021(2) R.C.R.(Crl.) 286, Mrs. Aparna A. Shah vs. M/s Sheth Developers Private Limited and another , (2013) 4 SCC (Cri) 241, Suman Sethi vs. Ajay K. Churiwal 2000(1) RCR (Crl.) 780 and M/s Rahul Builders vs. M/s Arihant Fertilisers & Chemicals and another, Criminal Appeal No. 525 of 2005. D/d. 2.11.2007.

5. Per contra learned counsel for the respondent submits that the learned trial Court has duly applied its judicial mind and considered the material placed before it while summoning the petitioner. Moreover, the disputed cheque relates to the account jointly held by the petitioner and his wife. As such, interference by this Court is not warranted.

6. Having heard the learned counsel for the parties and after perusing the record of the case, it transpires that the disputed cheque (Annexure P-2) was drawn on the account jointly held by the p