Advocates:
['AJAY GOYAL', 'P P', '', 'JITENDRA MISHRA', 'BHARAT YADAV']

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S.B. CRIMINAL MISC. PETITION NO. 5116/2015

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR.

ORDER

S.B. CRIMINAL MISC. PETITION NO. 5116/2015

WITH

S.B. CRIMINAL MISC. STAY APPLICATION NO. 4815/2015

Smt. Puja Bali W/o Sh. Ajay Kumar Bali, resident of House No.

464, Moti Mahal, Scheme No. 2, Lajpat Nagar, Alwar,

Rajasthan.

Accused Petition/Accused

Versus

1. State of Rajasthan through P.P

2. Smt. Sushila Devi W/o Sh. Kuldeep Yadav, R/o 112, Chetan

Enclave, Jaipur Road, Alwar, Rajasthan.

Respondents

DATE OF ORDER : 21.09.2016

HON'BLE MR. JUSTICE MOHAMMAD RAFIQ

Mr. Ajay Goyal, for the petitioner.

Mr. N.S. Dhakad, Public Prosecutor, for Respondent No. 1-

State.

Mr. Bharat Yadav, for Respondent No. 2-complainant.

REPORTABLE

BY THE COURT:

This petition has been filed by Smt. Puja Bali

challenging order of cognizance dated 24.03.2015 passed by Civil

Judge & Chief Judicial Magistrate, Alwar(for short ‘the trial

court’) and order dated 01.09.2015 passed by the Additional

District and Sessions Judge, No. 3, Alwar(for short ‘the revisional

court’). By the first order, the trial court has taken cognizance

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S.B. CRIMINAL MISC. PETITION NO. 5116/2015

against the petitioner and her husband Ajay Kumar Bali under

Section 138 of Negotiable Instruments Act(for short 'the Act') and

by second order, the revisional court has dismissed the revision

petition.

Learned counsel for the petitioner argued that the

petitioner has been added as accused in the aforesaid proceedings

only because she was joint account holder with her husband

whereas the cheque, which was dishonoured, was signed by her

husband. Learned counsel for the petitioner has relied upon the

judgment of the Supreme Court in Mrs. Aparna A. Shah Vs. M/s.

Sheth Developers Pvt. Ltd. & Anr. 2013 (2) DCR 417 wherein it

has been held that under Section 138 of Negotiable Instruments

Act, in case of issuance of cheque from joint account, a joint

account holder cannot be prosecuted unless the cheque has been

signed by each and every person who is a joint account holder.

Learned counsel argued that even though the petitioner has a

joint bank account with her husband, but indisputably the cheque

was signed by her husband and not by the petitioner. Similar view

has also been taken by Kerala High Court in Devi Vs. Haridas,

2005 (1) DCR 151.

Learned Public Prosecutor as well as learned counsel

for Respondent No. 2 opposed the petition and submitted that this

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S.B. CRIMINAL MISC. PETITION NO. 5116/2015

objection can be raised even before the trial court, which court

would deal with the same while deciding the matter finally.

Having regard to the fact that the issue involved in

the present case is squarely covered by the judgment of the

Supreme Court in Mrs. Aparna A. Shah(supra), this Court does not

deem it appropriate to allow the proceedings to continue against

the petitioner only because she happens to be wife of the main

accused as well as joint account holder with him. In a joint

family, husband and wife can operate joint bank account and only

for that reason, she cannot be prosecuted, particularly when she

was not signatory of the cheque which has bounced.

The Supreme Court in Aparna(supra) in para 23

observed as under:

“23. 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