A person cannot be held liable under Section 138 unless they are the drawer of the dishonoured cheque or qualify under vicarious liability provisions.

1. The prayer in this Criminal Miscellaneous Case is for quashing the impugned Anx.A - 1 complaint filed by the 2nd respondent alleging offence punishable under S.138 of the Negotiable Instruments Act, in which the 3rd respondent herein and the petitioner herein are arrayed as accused Nos.1 & 2 respectively. The said complaint is now pending as C.C.No.74/2011 on the file of the Judicial First Class Magistrate Court - II, Attingal. The dishonoured cheque amount in question is for an amount of Rs.4 lakhs. R - 3 (who is Accused No.1) is the mother of the petitioner, who has been arrayed as A - 2.

2. Though notice in this case has been taken out through registered post to the 2nd respondent - complainant in the address as shown by her in the cause title of the complaint, the said notice has been returned unserved stating "not known" and as the address of the 2nd respondent is the same as the one shown by the complaint in Anx.A - 1 and as the notice has been sent by registered post, it is only to be ordered that the notice to R - 2 has been duly completed.

3. Heard Sri. J. Jayakumar, learned counsel appearing for the petitioner (A - 2) and Sri. Saigi Jacob Palatty, learned Prosecutor appearing for R - 1 State.

4. From a reading of impugned Anx.A - 1 complaint, it is seen that the 1st accused (R - 3 herein) is the mother of the petitioner, who has been arrayed as accused No.2. The averments in the complaint is that the 1st accused along with her daughter (A - 2) approached the complainant and requested for grant of personal loan of Rs.4 lakhs for meeting the expenses of the 2nd accused's marriage and it is for repaying the said liability, the cheque in question has been issued by A - 1. It is clearly averred in para 4 of the complaint that the cheque is that of the 1st accused. It is again reiterated in para 9 of the complaint that the 1st accused had issued the cheque and the 2nd accused also acted along with the 1st accused in furtherance of their common intention to cheat and defraud the complainant and induced the complainant, etc. There are no averments anywhere in the complaint that the petitioner (A - 2) is the signatory to the above said dishonoured cheque in question. No averments are made in the complaint that the cheque in question has been issued from a joint account maintained by both the accused and that the petitioner (A - 2) has also signed the cheque. The averments in Anx.A - 1 complaint do not make out the case that vicarious liability as envisaged under S.141 is attracted to the facts and circumstances of the case. It is by now well too established that the offence under S.138 of the N.I. Act could be said to be committed by a person only if he is a drawer of the dishonoured cheque in question and that the cheque should have issued from an account maintained by such a drawer. In the instant case the averments in the complaint themselves make it clear that the cheque is of the 1st accused and there is no case anywhere in the complaint that the cheque has been issued from the joint account of both the accused or that A - 2 is also a signatory to the said cheque. Even in a case where the cheque is issued from a joint account of two persons, it has been held by this Court in Devi v. Haridas reported in 2004 (3) KLT 355, paras 3 to 5, as well as Aparna A.Shah v. Sheth Developers (P) Ltd. reported in 2013 (8) SCC 71 : 2013 (3) KLT 190 (SC), para 28, that so long as one of the joint account holder has not signed the dishonoured cheque, no offence under S.138 of the N.I.Act will lie against him, etc. The only exception to that would be in case of vicarious liability as envisaged in S.141 of he Act, where the drawer of the cheque as envisaged in that provision were even persons who are responsible for and i