Advocates:
['S K JINDAL/AMIT JINDAL', 'P P', '', 'MOHAMMED ARIF']

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JAIPUR BENCH, JAIPUR

ORDER

S.B. Criminal Misc. Petition No.4218/2014

Smt. Lalita Devi Vs. State of Raj. & Anr.

Date of Order

:::

03.11.2014

PRESENT

HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA

Mr. Amit Jindal, for the petitioner.

Mr. Prakash Thakuria, PP for the State.

Mr. Mohammed Arif, for complainant-respondent No.2.

***

The instant criminal misc. petition has been

instituted by the accused petitioner with a prayer to

quash and set aside the impugned orders dated 10^th

October, 2014 passed by the learned Additional Sessions

Judge No.2, Jaipur Metropolitan and the order dated 6^th

of May, 2013 passed by the learned Special Metropolitan

Magistrate (N.I.Act) Cases No.13, Jaipur Metropolitan,

Jaipur, in criminal case No.194/2013; and with a further

prayer to quash and set aside the proceedings initiated

qua the petitioner for offence under Section 138 of the

Negotiable Instruments Act, 1881 (herein after referred

to as the 'Act of 1881', for short).

2.

Briefly, the material facts are that a cheque bearing

No.038584 dated 31.12.2012, for an amount of Rs. Six

lacs, was drawn in favour of the complainant-Shital

Prakash Gothwal, out of the joint Bank Account of the

petitioner with her son Rakesh Jain. The cheque was

drawn by the son Rakesh Jain with his signatures. The

cheque was returned with the remark “Account Closed”.

Proceedings under Section 138 of the Act of 1881 were

instituted against Rakesh Jain and the petitioner.

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3.

The learned counsel for the petitioner, reiterating

the pleaded facts, has strenuously argued that the

petitioner was not a signatory to the cheque in dispute,

which was dishonoured. The fact of joint account

maintained by the petitioner (mother) with her son, co-

accused, is also not disputed. The learned counsel for the

petitioner would further submit that the proceedings

under Section 138 of the Act of 1881, are not sustainable

in view of the opinion of the Hon'ble Supreme Court in

the case of Aparna A.Shah Vs. Sheth Developmers

Private Limited & Anr; (2013) 8 SCC 71; wherein the

Hon'ble Supreme Court has laid down the law to the

effect that under Section 138 of the Act of 1881, it is only

the drawer of the cheque who can be prosecuted.

4.

Per contra, Mr.Mohammed Arif appearing on behalf

of the complainant-respondent has vigorously opposesd

the petition stating that the facts in the case of Aparna

A. Shah (Supra) were entirely different and the Hon'ble

Supreme Court expressed the opinion in peculiar facts

and circumstances of that case which are not operating in

the instant case at hand, and therefore, the opinion as

expressed cannot be applied to the case at hand. The

learned counsel would further submit that the case of

Aparna A. Shah (Supra), has been decided by the Hon'ble

Supreme Court while exercising powers under Article 142

of the Constitution. According to the learned counsel for

the complainant, the conduct of the petitioner reflects

that she was in collusion with her son, and hence, she is

equally liable for prosecution as her son namely Mr.

Rakesh Jain, who was a signatory to the cheque.

5.

I have heard the learned counsel for the petitioner

as well as the learned Public Prosecutor and with their

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assistance perused the materials available on record.

6.

The learned counsel for the complainant-respondent

admitted the fact that though the petitioner was not a

drawer of the cheque in dispute but she was a joint

account holder. However, the learned counsel for the

complainant-respondent, could not point out from the

contents of the judgment in the case of Aparna A. Shah

(Supra), even a whisper that the principle laid and that

the case was decided having regard to the peculiar facts

and circumstances of that case while exercising the

jurisdiction under Article 142 of the Constitution.

7.

In the case of Aparna A. Shah(Supra), the Ho