Crl.O.P.No.21812 of 2021

and Crl.MP.No.11837 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.09.2022

CORAM:

THE HONOURABLE Ms.JUSTICE R.N.MANJULA

Crl.O.P.No.21812 of 2021

and

Crl.MP.No.11837 of 2021

Kalaivani Kumar

... Petitioner

-Vs-

N.D.Ravikumar

... Respondent

Prayer: Criminal Original petition filed under Section 482 of Code of

Criminal Procedure, praying to call for the records relating to C.C.No.4767 of

2016 on the file of the Metropolitan Magistrate, Fast Court III, Saidapet,

Chennai and quash the same.

For Petitioner : Mr.R.T.Vijayaraaghavan

For Respondent

: Mr.S.Baskaran

*****

ORDER

This Criminal Original Petition has been preferred to call for the

records pertaining to C.C.No.4767 of 2016 on the file of the learned

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Crl.O.P.No.21812 of 2021

and Crl.MP.No.11837 of 2021

Metropolitan Magistrate, FTC-III, Saidapet, Chennai and quash the same as

illegal.

2. The petitioner is the second accused. The case in C.C.No.4767 of

2016 has been taken on file on the complaint given by the respondent against

the petitioner and her husband for the offence of dishonour of cheque under

Section 138 of the Negotiable Instruments Act. The allegations of the

respondent is that the first accused had signed the cheque dated 09.05.2015

for a sum of Rs.30 lakhs and issued it to the respondent towards discharging

the debt availed by the accused 1 and 2. The account in the drawers Bank is a

joint account held in the name of both the accused. Since the cheque was

dishonored, after complying the legal formalities, the petitioner had filed the

complaint under Section 138 of Negotiable Instruments Act for initiating

criminal action against the accused.

3. Heard the learned counsel for the petitioner and the learned counsel

for the respondent.

4. The learned counsel for the petitioner submitted that though the

account was a joint account held by both the accused, the second accused is

not the signatory to the impugned cheque. He relied on the decision of the

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Crl.O.P.No.21812 of 2021

and Crl.MP.No.11837 of 2021

Hon'ble Supreme Court held in C.A.No.8132013 in the case of Aparna

A.Shah Vs. M/s.Sheth Developers Pvt. Ltd & Anr., in support of his above

contention. In the said judgment, it has been held 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. Te 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 of the cheque but rejected the contention that the

amount was not due and payable by her solely on the ground

that the trial is in progress. It is to be noted that only after

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Crl.O.P.No.21812 of 2021

and Crl.MP.No.11837 of 2021

issuance of process, a person can approach the High Court

seeking quashing of the same on various grounds available to

him. Accordingly, the High Court was clearly wrong in

holding that the prayer of the appellant cannot even be

considered. Further, the Hig