O R D E R

This petition has been filed to quash the proceedings intiated by the respondent for the offence under Section 138 of Negotiable Instruments Act in C.C.No.388 of 2018 on the file of the Fast Track Court No.I (Magisterial Level), Coimbatore.

2. The respondent lodged a complaint alleging that on

19.01.2018, the first accused owes a sum of Rs.41,12,499/- and the second accused owes a sum of Rs.4,76,167/- to the respondent herein. Both A1 and A2 have been irregular in repayment of loan. On demand, both the accused had jointly issued a cheque for a sum of Rs.45,88,666/- to the amount due under the loan. On instruction, the cheque was presented for collection and the same was dishonoured with the endorsement 'funds insufficient'. After issuance of statutory notice, the respondent lodged a complaint for the offence under Section 138 of Negotiable Instruments Act.

3. The learned counsel for the petitioner would submit that though the cheque was issued from their joint account maintained by the first accused, petitioner/2nd accused and another, the alleged cheque was issued without the knowledge of the petitioner herein. That apart, the petitioner is not a drawer of the alleged cheque issued by the first accused. Therefore, she cannot be held liable to be punished for the alleged offence under Section 138 of Negotiable Instruments Act, as the liability can be fastened only on the drawer of the cheque as contemplated under Section 138 of Negotiable Instruments Act. Though the first accused and the petitioner, along with another, are the joint account holders and the drawer of the cheque alone can be prosecuted for the offence punishable under Section 138 of Negotiable Instruments Act. In support of her contention, she relied upon the Judgment reported in

2013 (8) SCC 71 and 2021 (4) SCC 675.

4. Per contra, the learned counsel appearing for the respondent would submit that the first accused had availed housing loan for a sum of Rs.43,50,000/- from the respondent in Loan A/c.No.603725063 on 31.01.2012 and also executed loan agreement, demand promissory note and other necessary documents in favour of the respondent. Likewise, the second accused/petitioner also borrowed a loan for a sum of Rs.5,50,000/- in Loan A/c.No.351328331 on

03.03.2004 and executed necessary documents. Both were irregular in repayment of bank dues. On demand, in order to discharge the entire liability, both the accused A1 and A2 issued a cheque for a sum of Rs.45,88,666/-. However, it was dishonoured for the reason that 'insufficient fund'. Though the first accused is the drawer of the cheque, both accused are jointly and severally liable to be punished for the offence under Section 138 of Negotiable Instruments Act, since both are having joint account holder from which the cheque was issued in favour of the respondent herein.

5. He further submitted that the grounds raised by the petitioner are all mixed questions of fact which cannot be considered by this Court as it can be considered only before the Trial Court, in a ful1-

fledged trial by letting-in-evidence.

6. Heard both sides and perused the materials available on record.

7. The cheque dated 10.12.2017 drawn on the Lakshmi Vilas Bank, Salem, was issued in favour of the respondent herein for a sum of Rs.45,88,666/- towards the full discharge of the amount due under the said loan availed by A1 and A2. The petitioner is arrayed as A2. The complaint is lodged by the respondent herein under Section 138 of Negotiable Instrument Act. The first accused, petitioner/2nd accused and one Kanthamani are having joint account with Lakshmi Vilas Bank in A/c.No.06603010000039226, Swarnapuri Branch, Salem. Even then, the first accused alone signed the cheque and issued it in favour of the respondent herein. The only ground raised by the petitioner is that the drawer of the cheque is only liable to be punished for the offence punishable under Section 138 of Negotiable Instruments Act.

8. It is relevant to extract the provisions