Only the drawer of a cheque is liable under Section 138 of the Negotiable Instruments Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 4^TH DAY OF FEBRUARY 2026 / 15TH MAGHA, 1947 CRL.MC NO. 4139 OF 2024 CRIME NO.0/0 OF , AGAINST THE ORDER/JUDGMENT DATED IN ST NO.198 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS - VI, KOZHIKODE PETITIONER/SECOND ACCUSED:

USHA MANIKANDAN, AGED 54 YEARS WIFE OF MANIKANDAN K V, KOTTEKATTIL HOUSE, KARUKUTTY, ERNAKULAM DISTRICT, PIN - 683576 BY ADVS.

SRI.SAIJO HASSAN SMT.V.P.REJITHA SHRI.DHEERAJ BABY SMT.MEERA J. MENON RESPONDENTS/STATE AND COMPLAINANT:

1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN - 682031

2 MUHAMMED SHAMEER, SON OF AMMAD HAJEE, CHATHAN PARAMBIL HOUSE, PERAMBRA, PERAMBRA P O , KOZHIKODE, PIN - 673525 BY ADVS.

SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN OTHER PRESENT:

SENIOR PUBLIC PROSECUTOR- SRI C S HRITHWIKTHIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.02.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Dated this the 4^th day of February, 2026

ORDER

The petitioner is the second accused in S.T. No. 198/2022 on the file of the Special Judicial First Class Magistrate (Maradu Cases)-VI, Eranhipalam (‘Trial Court’, for brevity), which is filed by the second respondent against the petitioner and her husband (first accused in the complaint), alleging the commission of the offence punishable underSection 138of theNegotiable Instruments Act, 1881.

2. The gravamen of the second respondent’s case in the complaint is that; the first accused had issued a cheque in connection with the business transaction. However, the cheque, on presentation to the bank had got dishonoured. Even though the second respondent had issued statutory demand notices to the first accused and the petitioner, the accused persons have not repaid the demanded amount. Thus, the accused have committed the above offence.

3. I have heard the learned Counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the second respondent.

4. The learned counsel for the petitioner submits that, the petitioner was not the drawer of the cheque. It was her husband who signed and issued the cheque. The petitioner has been arraigned as the second accused in the complaint solely for the reason that she did not pay the cheque amount despite the receipt of the statutory demand notice. As long as the petitioner is not the drawer of the cheque, the offence against the petitioner under Section 138 of the NI Act will not be attracted. The entire proceedings against the petitioner is a sheer abuse of process law. Therefore, Annexure A1 complaint, as against the petitioner, may be quashed.

5. The learned counsel for the second respondent submits that the petitioner can very well file an application seeking discharge, if she is not the drawer of the cheque. This Court may not embark upon a mini trial and quash the proceedings. Hence, the Crl.M.C. may be dismissed.

6. A reading of the allegations in Annexure 1 complaint unambiguously reveals that it was the first accused who issued the cheque for Rs.7,50,000/- drawn on his bank account with the Canara Bank, Chalapuram Branch, Kozhikode. It is alleged in the complaint that the second accused, who is the representative of the first accused, had assured that the cheque will be honoured on the presentation to the bank. Even though a statutory demand notice was issued against the second accused (petitioner), the amount has not been paid.

7. In Harihara Krishnan.N v. J.Thomas [2018 (13) SCC 663] , the Hon’ble Supreme Court has categorically held that only the drawer of the cheque would fall within the ambit of Section 138 of the NI Act.

8. Going by the allegations in the complaint, it is an undisputed fact that the petitioner is not the drawer of the