An offence under Section 138 of the Act is restricted to the drawer/signatory of the cheque. Vicarious liability under Section 141 does not apply to private individuals; therefore, a joint account holder cannot be prosecuted for cheque dishonour unless they are a signatory to the specific instrument.

JUDGMENT :

SANDEEP JAIN, J.

1. The instant application has been filed for the following reliefs:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to stay the impugned summoning order dated 03.07.2006 passed in Complaint Case No.958 of 2006 (Hari Om Pathak Vs. Rahul & others) under Section 138 of the N.I. Act, Police Station Kavi Nagar, District Ghaziabad.

It is, further prayed that this Hon'ble Court may graciously be pleased to quash the proceedings of Case No.958 of 2006 (Hari Om Pathak Vs. Rahul & others) under Section 138 of the N.I. Act pending in the court of Special Judge, C.B.I., Ghaziabad."

2. The factual matrix of the case is that the complainant/respondent no. 2, Hari Om Pathak, filed a criminal complaint against the applicant Madhu Singh and co-accused Rahul Thind (her friend) under Section 138 of the Negotiable Instruments Act, 1881, as well as under Section 420 IPC, with the allegations that relations between the complainant and Rahul Thind were very cordial ad due to this, the complainant advanced Rs. 3,00,000/- and Rs. 5,00,000/- in December, 2004 as loan for business purposes, on the assurance that the said amount would be repaid within two months, failing which interest @ 18% per annum would be paid.

3. Relying upon the said assurance, the complainant advanced the aforesaid sum to Rahul Thind. However, upon expiry of the stipulated period, the amount was not repaid. Upon repeated demands, Rahul Thind issued two cheques bearing no. 128736 dated 01.04.2006 for Rs.3,00,000/- and cheque no. 128733 dated 04.04.2006 for Rs. 5,00,000/-, both drawn on HDFC Bank Ltd., Raj Nagar, Ghaziabad, with an assurance that the same would be honoured upon presentation.

4. Acting upon such assurance, the complainant presented the cheques in his bank account; however, both cheques were dishonoured and returned on 08.04.2006 and 13.04.2006 with the remark that the account of the drawer had been closed.

5. Thereafter, upon receiving information from the bank, the complainant consulted his counsel Shri Dhanesh Kumar Sharma, who advised issuance of a legal notice. Accordingly, a statutory notice dated 05.05.2006 was sent through registered post to both accused persons, which was duly served upon them on 22.05.2006. Despite service of notice, the cheque amount was not paid within the statutory period. Instead, a reply containing incorrect and misleading assertions was sent on 22.05.2006.

6. It is the case of the complainant that accused Rahul Thind, with fraudulent intent and with the object of cheating, obtained the aforesaid amount on false assurances and thereafter, deliberately issued cheques which were dishonoured, and even closed the bank account to evade liability. The accused/petitioner Madhu Singh was also jointly and severally liable to repay the loan. On these allegations, the complaint was instituted on 12.06.2006 before the competent court, to summon and punish the accused for offence under Sections 138,141 of the NI Act and Section 420 IPC and for ordering the accused to pay twice the cheque amount with 18% interest per annum.

7. Before the trial court, the complainant submitted his affidavit in evidence under Section 200 Cr.P.C., and produced relevant documentary evidence - the original cheques bearing nos. 128736 and 128733, bank return memos, postal receipts, and a copy of the legal notice issued under Section 138 of the N.I. Act.

8. Upon consideration of the material on record, the trial court, vide impugned summoning order dated 03.07.200