This petition filed under Section 482 of the Code Of Criminal Procedure,

1973, by the applicant/accused No.1, for quashing of summons,

proceedings/case, pending before JMFC Barwani in case No.SC/NIA 82/2019.

2. Facts of the case in short are that accused persons Moij Hussain

Sabeer and Smt. Tasneem Sabir/applicant are husband and wife amongst, and

both the parties are known to each other. Accused persons were in need of

loan, thus on their request the respondent/complainant had given in different

occasions, different sum of money, a total of Rs.15,25,000/-. For the

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repayment of loan, cheque (cheque No.501421) was issued by the accused

persons from their joint account on 10.04.2019. The cheque was issued and

signed by accused No.1 Moij Hussain. The aforesaid cheque was dishonoured

on 10.04.2019 with an endorsement “Funds insufficient”. The complainant had

given notice on 11.04.2019 to the accused persons on 13.04.2019, despite of

that they had not repaid the loan amount. Therefore, he filed a complaint against

the accused persons.

3. Learned counsel for the applicant/accused No.2 has submitted that she

had not signed and issued any cheque in favour of the complainant/respondent.

The questioned cheque was issued only by her husband/accused No.1 as

alleged. Therefore, complaint u/S 138 of the NI Act, against the applicant is

nothing but abuse of process of law. Therefore, the learned counsel has prayed

for quashing of private complaint registered against her. Learned counsel has

placed reliance on the case of Mrs. Aparna A. Shah V M/S Sheth Developers

Pvt. Ltd. And Ors. [Reported in AIR 2013 SC 3210].

4. I have heard learned counsel for the applicant and perused the record.

5. For deciding the matter it is apposite to reproduce S.138 of NI Act,

which runs as under:-

“138. Dishonour of cheque for insufficiency, etc., of funds in the

account.-Where any cheque drawn by a person on an account

maintained by him with a banker for payment of any amount of

money to another person from out of that account for the

discharge, in whole or in part, of any debt or other liability, is

returned by the bank unpaid, either because of the amount of

money standing to the credit of that 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 that bank,

such person shall be deemed to have committed an offence and

shall, without prejudice to any other provision of this Act, be

punished with imprisonment for 4 [a term which may be extended

to two years’], or with fine which may extend to twice the amount

of the cheque, or with both: Provided that nothing contained in

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this section shall apply unless— (a) the cheque has been

presented to the bank within a period of six months from the date

on which it is drawn or within the period of its validity,

whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the

case may be, makes a demand for the payment of the said amount

of money by giving a notice; in writing, to the drawer of the

cheque, 5 [within thirty days] of the receipt of information by

him from the bank regarding the return of the cheque as unpaid;

and

(c) the drawer of such cheque fails to make the payment of the

said amount of money to the payee or, as the case may be, to the

holder in due course of the cheque, within fifteen days of the

receipt of the said notice. Explanation.—For the purposes of this

section, “debt of other liability” means a legally enforceable

debt or other liability.”

6. In the case of Mrs. Aparna A. Shah (Supra) the Apex Court in

Paragraph 22 has held as under:-

(22) 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. I