A non-signatory joint account holder cannot be prosecuted under Section 138 of the NI Act unless they have signed the cheque.

1. Heard.

2. ADMIT. Taken up for final disposal forthwith by consent of the learned advocates for the parties.

3. The applicant in this application, made under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C .” for short), has questioned the correctness of the order dated 16.06.2022 passed by the I/c 4th Joint Juicial Magistrate, First Class, Amravati in Summary Criminal Case No. 4026/2022, whereby the learned Magistrate was pleased to issue process against the applicant, who is shown as accused no.2 in the complaint, with her husband, who is shown as accused no.1, for the offence punishable under Section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the N.I. Act” for short).

2. The parties in this application will be referred by their nomenclature in the complaint. Non-applicant no.1 is the original complainant. The complainant filed a complaint under Section 138 of the N.I. Act against the applicant/accused no.2 and her husband/ accused no.1. Two cheques dated 07.02.2022 and 05.03.2022, for Rs.70,000/- and Rs.3,00,000/-, respectively, were issued on the joint account maintained by accused nos.1 and 2. However, the cheques were signed by the accused no.1/husband. The cheques, on being presented by the complainant for encashment, were dishonoured for the reason “Funds Insufficient”. A notice was issued to the accused persons. On failure of the accused to pay the amount of cheques in question, the complaint came to be filed. Learned Magistrate recorded the verification statement of the complainant. Learned Magistrate on the basis of the verification statement and the material placed on record, issued process against accused nos.1 and 2 for the offence punishable under Section 138 of the N.I. Act.

3. In this application, it is the case of the applicant/ accused no.2 that though she is the joint account holder with accused no.1, the cheques in question were not signed by her. It is stated that the cheques were signed by her husband/accused no.1. It is further stated that she cannot be made vicariously liable simply because she is the joint account holder with accused no.1.

4. I have heard Mr. D. N. Mudgale, learned advocate for the applicant/accused no.2 and Mr. R. D. Wakode, learned advocate for non-applicant no.1/original complainant. Perused the record and proceeding.

5. The issue involved in this application can be resolved on the basis of the undisputed facts and by applying the law laid down by the Hon’ble Apex Court.

6. Learned advocate for the complainant, on the basis of the facts set out in the notice issued to the accused persons, made an effort to show that the accused no.2 can be prosecuted with accused no.1. He drew my attention to the specific averments made in the notice. He has pointed out that specific averments have been made in the notice as well as in the complaint that the cheques in question were signed in presence and with the consent of accused no.2 and as such she is liable to be prosecuted.

7. Learned advocate for the accused no.2/applicant, in order to meet these submissions, placed heavy reliance on the decision of the Hon’ble Apex Court in Alka Khandu Avhad .vs. Amar Syamprasad Mishra and another, reported at (2021) 4 SCC 675 and submitted that accused no.2 not being the signatory to the cheques in question, cannot be prosecuted merely because she is the joint account holder with accused no.1. In my view, this issue can be resolved on the basis of the law laid down by the Hon’ble Apex Court in this case.

8. It is undisputed that the chques in question were not signed by accused no.2. It is an admitted fact that