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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 258 OF 2021

Alka Khandu Avhad

.. Appellant

Versus

Amar Syamprasad Mishra & Anr.

.. Respondent

J U D G M E N T

M. R. Shah, J.

1.

Feeling aggrieved and dissatisfied with the impugned judgment and order

dated 21.08.2019 passed by the High Court of Judicature at Bombay in Criminal

Writ Petition No. 2595 of 2019, by which the High Court has dismissed the said

application preferred by the appellant herein under Article 226 of the Constitution

of India and has refused to quash the complaint filed against the appellant for the

offences punishable under Section 138 r/w Section 141 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as the ‘NI Act’), the original

accused No. 2 has preferred the present appeal.

Digitally signed by

Chetan Kumar

Date: 2021.03.08

17:19:11 IST

Reason:

Signature Not Verified

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2.

That respondent No. 1 herein has filed a criminal complaint against the

appellant and her husband for the offences punishable under Section 138 r/w

Section 141 of the NI Act in the Court of the learned Metropolitan Magistrate, 43^rd

Court at Borivali, Mumbai, which has been numbered as C.C. No. 2802/SS/2016.

That respondent No. 1 – original complaint (hereinafter referred to as ‘the original

complainant’) is a practicing advocate and partner in a solicitor firm in Mumbai.

As per the case of the complainant, both the accused who are husband and wife,

approached the original complaint in a legal matter. That the original complainant

assisted accused Nos. 1 and 2 in preparing replies and notice of motion,

conference, coordinating with counsel, filing Vakalatnamas and appearing through

advocates’ office and also as counsel in Summary Suit. That the original

complainant raised a professional bill for the legal work done by him to represent

accused Nos. 1 and 2 in the legal proceedings. That, thereafter, original accused

No. 1 – husband of the appellant herein handed over to the complainant a post-

dated cheque dated 15.03.2016 bearing No.227050 drawn on Union Bank of India

for Rs.8,62,000/-. The said cheque was presented for encashment and the same

came to be returned unpaid with the endorsement “funds insufficient”. That,

thereafter, the original complainant served a legal notice dated 21.05.2016 calling

upon the accused to pay the amount of Rs.8,62,000/- within 15 days from the date

of receipt of the said notice. That the said notice was duly served upon the

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accused, however, the accused neither replied the said notice nor made the

payment of the aforesaid dishonoured cheque. Therefore, the complainant filed a

complaint against both the accused – husband and wife for the offence punishable

under Section 138 of the NI Act. That the learned Metropolitan Magistrate, 43^rd

Court, Borivali, Mumbai directed to issue process against both the accused for the

offence punishable under Sections 138 r/w Section 141 of the NI Act.

2.1

That, thereafter, the appellant herein – original accused No. 2, wife of the

original accused No. 1 filed Criminal Writ Petition No. 2595 of 2019 in the High

Court to quash the criminal complaint filed against her mainly on the ground that

the appellant was neither a signatory to the cheque dishonoured nor there was a

joint bank account.

2.2

It was further submitted that the appellant cannot be prosecuted for the

offence punishable under Sections 138 r/w Section 141 of the NI Act.

2.3

However, it was the case on behalf of the original complainant that it was

the joint liability of both the accused Nos. 1 and 2 to pay the professional bill as

the original complainant represented both the accused and therefore considering

Section 141 of the NI Act, the appellant herein – original accused No. 2 is also

liable for the offence punishable under Section 138 r/w Section 141 of the NI Act.

2.4

By the impugned judgment and order, the High Court has refused to quash

th