O R D E R

% 17.09.2024

1. By way of the present petition, the petitioner seeks quashing of Criminal Complaint No. 4658/2018 titled Miraj Inforant Systems v. M/s Ambunita Kanvos Pvt. Ltd. & Ors. pending before the Ld. Judicial Magistrate First Class (JMFC), NI Act (East), Karkardooma Courts, Delhi.

2. Learned counsel for the petitioner contends that the present proceedings arise in the context of cheque bearing No. 198952 dated 20.08.2018 drawn on IDBI Bank for a sum of Rs.45,000/- issued by other co-accused namely, Ambuj Srivastav who happens to be petitioner’s husband. Learned counsel further contends that the subject cheque has not been issued either from the joint account of the petitioner and Ambuj or the company’s account where both of them were Directors but rather, from the individual account of the co-accused.

It is further submitted by the learned counsel for the petitioner that the petitioner never came in contact with the respondent/complainant and that the petitioner has neither entered into any transaction with the respondent nor signed the cheque in question. In lieu thereof, it is submitted that the petitioner does not have any legal liability against the respondent. Lastly, it is submitted that without appreciating the aforesaid facts, the Trial Court has summoned the present petitioner.

3. Learned counsel for the respondent has contested the present petition by contending that it was both the accused persons who had approached the complainant for supply of laptops on rent against which the subject cheque came to be issued. It is stated that both the accused in the complaint i.e., Ambuj and the petitioner are Directors of Company and since the cheque issued by Ambuj was to discharge the liability of the aforesaid company, the petitioner is also vicariously liable for the dishonour of the cheque in question.

4. I have heard the learned counsels for the parties and perused the material placed on record.

5. The copy of the subject cheque is placed on record. Concededly, in the present case, Section 141 of NI Act is not attracted as the subject cheque was signed by the co-accused/Ambuj Srivastava from his personal account and not from the account of the company. To this, Respondent No.2 has contended that though the cheque was drawn from the personal account of the co-accused, however since it was issued with respect to the liability of the firm, the petitioner would also be jointly liable for its dishonour. Thus the issue which arises for consideration is whether the petitioner would be vicariously liable for the dishonour of a cheque issued by the personal account of the co-accused/Director of the firm.

6. To deal with the issue at hand, it would be necessary to analyse Section 138 of the N.I. Act which is extracted below for convenience.

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where 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 debt or 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 exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4 [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both:…”

7. From a reading of the above Section, it is evident that in order to attract the rigours of Section 138 of the NI Act on a person, the cheque in question has to be drawn by a person on an account maintained by him. It cannot be that some other person is roped in a criminal case involving Section 138 NI Act, merely because they were co-Directors in the firm. Th