Only signatories of dishonoured cheques can be prosecuted under Section 138 of the NI Act; liability does not extend to non-signatories.

ORAL ORDER:

1. Criminal Misc. Application No. 52 Of 2022 is filed seeking to convert the above Main Criminal Application [i.e. Criminal Application (Main) No.270 Of 2022 (F)] from one under Section 482 of the Code of Criminal Procedure , 1973 (for short the (cid:210)Cr.P.C.(cid:211)), to one under Section 397 of the Cr.P.C. At the outset, the learned Advocate appearing on behalf of the Applicant stated that he is not pressing the above Criminal Misc. Application and is only pressing the above Main Criminal Application [i.e. Criminal Application (Main) No.270 Of 2022 (F)] in terms of the alternate prayer therein which reads thus :

“In the alternative, this Hon'ble Court may be pleased to quash further proceedings against the Petitioner in Criminal Case No. 81/2020/H (in the matter of S.S.L. Developers versus Sushant Dicholker & anr.) pending before learned Judicial Magistrate First Class, at Margao.”

2. In these circumstances, I have heard the parties only on the issue of the alternative prayer reproduced above.

3. Mr. Nigel Da Costa Frias, the learned Advocate appearing on behalf of the Applicant, submitted that in the facts of the present case, it is the case of the original Complainant (Respondent No.1 herein) that the husband of the Applicant had a proprietorship concern called (cid:212)Sunrise Restaurant(cid:213) who had a verbal agreement with Respondent No.1 (the original Complainant) under which the Applicant(cid:213)s husband would take one two BHK Flat (on the 4th Floor) and 8 Studio Apartments (on the 3rd Floor) belonging to Respondent No.1 (the original Complainant) and give them out to tourists. It is the further case of the original Complainant that there was also a verbal agreement that the husband of the Applicant would pay to Respondent No.1 (the original Complainant), a sum of Rs.1,50,000/- per month (for the 2 BHK Flat) and Rs.4,25,000/- per month (for the 8 Studio Apartments) aggregating to Rs.5,75,000/- per month. In discharge of the alleged dues of the Applicant(cid:213)s husband to Respondent No.1 (the original Complainant), the Applicant(cid:213)s husband issued three cheques in the sums of (i) Rs.3,37,500/-; (ii) Rs.3,37,500/; and (iii) Rs.10,00,000/- (aggregating to Rs.16,75,000/-). These cheques, when presented for payment on 23.12.2019, were dishonoured. Accordingly, Respondent No.1 (the original Complainant) filed a complaint under Section 138 of the Negotiable Instruments Act , 1881 (for short the ’NI Act’), not only against the husband of the Applicant (i.e. Accused No.1) but also against the Applicant (i.e. the wife — Accused No.2).

4. Mr. Frias submitted that in this complaint, a process was issued by the learned Trial Court on 16.03.2020. Being aggrieved by this action, the Applicant preferred an application under Section 258 of the Cr.P.C. for stopping the proceedings on the ground that the Applicant before the Court (i.e. the wife) was not a signatory to the said dishonoured cheques. This application was opposed by Respondent No.1 (the original Complainant) mainly on the ground that the Trial Court had no power to review or recall its own order which had issued the process against the Applicant.

5. It was the submission of Mr. Frias that the Trial Court, after hearing the parties, by its order dated 28.02.2022, dismissed the application filed by the Applicant (under Section 258 of the Cr.P.C.) on the ground that it had no power to recall and/or review its own order. Mr. Frias submitted that this order is challenged in the present Main Criminal Application along