A joint account holder cannot be prosecuted under Section 138 of the Negotiable Instruments Act unless they are a signatory to the cheque.

ORDER

The present petition has been filed by the second accused in S.T.C.No.626 of 2025 on the file of the learned Judicial Magistrate No.2, Usilampatti seeking to quash the private complaint filed under Section 138 of the Negotiable Instruments Act.

2. According to the learned counsel appearing for the petitioner, the cheque which was alleged to have been dishonored arises out of a joint account in the name of the first accused and the second accused, namely, R.Ramesh and R.Manjulakshmi. The second accused, who is the petitioner herein, has not signed the cheque, though it is a joint account. Therefore, the ingredients of Section 138 of the Negotiable Instruments Act have not been attracted. Hence, the petitioner has sought to quash the private complaint.

3. The learned counsel appearing for the petitioner also relied upon a decision of this Court in Crl.O.P.No.3400 of 2020 dated 22.06.2022 (R.Chamundeswari Vs. M/s.Housing Development Finance Corporation Ltd., by its Legal Officer Shareen Velloath), wherein, this Court was pleased to quash the private complaint.

4. The learned counsel appearing for the respondent submitted that though it is a joint account and it is signed only by the first accused, unless trial is conducted, it cannot be established what is the role of the petitioner in issuance of the cheque. She further submitted that the petitioner is known to the respondent / complainant for so many years and believing her, they have received the cheque. In such circumstances, unless the petitioner is directed to face the trial, the respondent / complainant would be put to great hardship.

5. Heard both sides and perused the records.

6. A perusal of the cheque clearly reveals that it is a joint account standing in the name of R.Ramesh and R.Manjulakshmi. Admittedly, it has been signed only by the first accused R.Ramesh and not by the present petitioner R.Manjulakshmi.

7. The Hon'ble Supreme Court in a judgment reported in 2013 (8)

SCC 71 (Aparna A.Shah Vs. M/s.Sheth Developers Private Limited and another) in Paragraph Nos.27 and 28 has held as follows:

“27. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in- chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque.

28. We also hold that under Section 138 of the N.I.

Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case “except in case of Section 141 of the N.I. Act” be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory