Back
2023 Supreme(Online)(KER) 11742
HIGH COURT OF KERALA
RAJA VIJAYARAGHAVAN, J
LASITHA M – Appellant
Versus
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR – Respondent
Crl.MC 3353 2023
M.R.SASITH, SRI. ADARSH S, SRI.M.P PRASHANTH, PP
Only the drawer of a cheque can face prosecution under Section 138 of the Negotiable Instruments Act, not mere joint account holders.
Headnote:
Cheque - Negotiable Instruments - Section 138, 142 - The court held that only the drawer of a cheque can be prosecuted under Section 138, emphasizing that mere presence or being a joint account holder does not confer liability.
Fact of the Case:
The petitioner, the second accused in a case regarding a dishonored cheque, argued against the complaint lodged under the Negotiable Instruments Act, claiming that only the drawer, her husband, could be liable for prosecution under Section 138.
Finding of the Court:
The court analyzed the key ingredients of Section 138 and concluded that the petitioner, not being the drawer of the cheque, could not be prosecuted under this section, thereby quashing the proceedings against her.
Issues: Whether the petitioner, as a joint account holder and not the drawer, can be prosecuted under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court determined that only the actual drawer of the cheque can be held liable under Section 138 of the Negotiable Instruments Act, affirming established precedents that mere association with the drawer does not create liability.
Final Decision: The proceedings against the petitioner are quashed.
ORDER
This petition is filed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity).
2. The petitioner herein is the 2nd accused in S.T.No.550/2021 on the files of the Judicial Magistrate of the First Class, Karunagappally. The aforesaid complaint has been lodged by the 2nd respondent under Sections 138 and 142 of the Negotiable Instruments Act . 3. Short facts are as under:
In the complaint filed by the party respondent under Section 138 of the Negotiable Instruments Act , it is alleged that the petitioner herein, who is arrayed as the 2nd accused, is the wife of the 1st accused. It is further alleged that the accused approached the de facto complainant and borrowed a sum of Rs.2 lakhs for their urgent needs, and in discharge of the debt, the 1st accused is alleged to have drawn a cheque on an account maintained by him in the presence of the 2nd accused. When the cheque was presented for collection, the same was dishonored, which led to the lodging of the complaint.
4. Miss. Neelanjana, the learned counsel appearing for the petitioner, submits that the proceedings against the petitioner herein is a clear abuse of process. According to the learned counsel, the cheque was admittedly issued by her husband, who is arrayed as the 1st accused. Referring to the expression ‘drawer’
under the Negotiable Instruments Act , it is submitted that only the drawer can be prosecuted for the offense under Section 138 of the . In order to substantiate her contention, reliance is placed on the law laid down by the Apex Court inJugesh Sehgal v. Shamsher Singh Gogi1 and in Aparna A. Shah v. M/s Sheth Developers Pvt. Ltd and Another 2. It is further stated that even if it is taken that the issuance of a cheque was from a joint account, only the person who has drawn the cheque can be validly prosecuted. Reliance is also placed on the judgment rendered by the Delhi High Court inGita Berry v. Genesis Educational Foundation3 to substantiate that the complaint against a person who has not drawn the cheque cannot be maintained under law.
5. In response, the learned counsel appearing for the respondent submitted that in the complaint, it is specifically stated that the cheque was issued by the husband in the presence of the wife. The learned counsel would also submit that the petitioner herein, being a joint holder, cannot escape from liability.
6. I have considered the submissions advanced.
7. To constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque onanaccountmaintainedbyhimin a bank for payment of a certain amount of money to another personfromoutofthat account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
8. It is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offense under Section 138 of the Act
