Delhi High Court

Urmila Kumari vs Rukmani Devi & Ors. on 9 January, 2013

Author: Kailash Gambhir

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.M.C. 2741/2011 & Crl.M.A. No. 9780/2011

       URMILA KUMARI                      ..... Petitioner
               Through           Mr. Deepak Tyagi, Adv.

                    versus

       RUKMANI DEVI & ORS.             ..... Respondent
               Through  Mr. Anupam Sharma for R-1
                        Mr. Navin Sharma for State.

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR

               ORDER

% 09.01.2013

1. This is a petition under Section 482 of the Code of Criminal Procedure,

1973 ( Crl. PC ) filed by the petitioner seeking quashing of the Complaint

Case No. 150/09 titled as Smt. Rukmani Devi V. Inderjeet & Anr. under

Section 138 of the Negotiable Instrument Act, 1881 ( Act ).

2. The complaint sterns from a dishonored cheque dated 1.12.2008 drawn

on the ICICI Bank by Shri Inderjeet, husband of the petitioner in favour

of the complainant , Smt. Rukmani, the Respondent no.2 herein in the

sum of Rs. 2,12,000/-.

3. The case of the petitioner is that the offence under Section 138 of the Act cannot be said to have been made out against the petitioner only on the

ground that she was a joint account holder along with her husband. She

has admittedly neither drawn nor issued the cheque in question and

therefore the complaint against her was not maintainable.

4. Arguing the present petition, ld. counsel for the petitioner submits that

the respondent no.1 has filed the said complaint under Section 138

of the Negotiable Instruments Act, 1881 read with Section 420/34 IPC,

1860, on the allegations that the present petitioner and the respondent

no.2 had agreed to purchase the flat of the complainant/ respondent

no.1 for a total sale consideration amount of Rs. 14,61,000/- and out

of the said sale consideration amount the petitioner and the respondent

no.2, had issued a cheque for an amount i.e. Rs. 2, 12, 000/- in favour of

the respondent no.1 herein vide cheque no. 610769 drawn on ICICI bank

dated 1.12.2008. Counsel submits that after its presentation by the

complainant to the bank, the same was returned dishonoured by the bank

and based on the same, the said complaint was filed by the

complainant/respondent no.1. Counsel further submits that the

petitioner is not a signatory to the said cheque and therefore, no case

against the petitioner can be made out under Section 138 of the

Negotiable Instruments Act, 1881. To enunciate his argument further,

counsel brought the attention of this court to the allegations leveled against the petitioner as well as the respondent no. 2 in complaint case no.

150/09 as detailed in paragraph no.2 of the petition, which are given

below:

a) That as per the complaint filed by the Respondent No.1 / Complainant, petitioner and the respondent no. 2 agreed to purchase the flat from Smt. Rukmani, respondent no.1 herein bearing flat no. D-1/1/5, D.L.F, Dilshad Extension, Village Brahmpuri @Bhopura, Shahibabad, Distt. Ghaziabad (U.P.) on 02.08.2000 through M/S Pasha Properties situated at Dilshad Extension -II for a sum of Rs. 14, 61,000/- . That Inderjeet/respondent no.2 herein in order to confirm the deal, paid Rs. 20,000/- on account of earnest money to the husband of the complainant in the presence of the property dealer vide receipt dated 02.08.2008.

b) Thereafter, the respondent no. 2 herein told the complainant that for the purpose of payment of Rs. 14,61,000/-, they would obtain loan from the bank and for the said reason , the complainant should sign the sale deed, so that the transaction can be processed smoothly.

c) That further the petitioner and respondent no.2 made the payment of Rs. 1,50,000 in cash to the husband of the complainant and another sum of Rs. 2,50000/- , therefore Rs. 3,85,000/- stood paid in cash, now 10, 76, 000/- was the remaining amount which had to be cleared by the petitioner and the respondent no.2 herein. That on 02.12.2008, the complainant reached along with her husband at the office of the Property dealer, M/S Pasha Properties and there Mr. Inderjeet/ the respondent no.2 told the complainant and her husband that the Bank officials are giving the loan draft only for Rs. 8, 64,000/- in place of Rs. 10,76,000/-, therefore for the remaining amount of Rs. 2,12,000/-, they would issue the cheque in the name of the complainant and she could deposit the same in the bank in the last week of December 2008, as they had certain personal reasons due to which they could not afford the encashment of the cheque before last week of December.

d) Inderjeet issued the cheque dated 1.12.2008 to the complainant. Subsequently on 03.12.08, the draft of Rs. 8, 64,000/- was also handed over to the husband of the complainant. Further due to some personal discrepancies, Inderjeet requested the complainant and her husband through Mr. Javed Pasha, the property dealer to deposit the cheque of Rs. 2,12,000 in the bank only after 15th of February as there were no substantial funds available in the account. The complainant therefore deposited the said cheque on 16.02.2009 in her bank i.e. Bank of Baroda, mandolin , Delhi and the complainant and her husband were shocked to realize that the cheque has been dishonoured vide memo dated 19.02.2009.

e) That on 09.03.2009 the complainant sent a legal demand notice of Rs. 2,12,000/- to the petitioner and the respondent no.2 through there counsel and accused persons inspite of clearing of the liability, completely digressed from the stand and contended that the Agreement to Sell was only for the sum of Rs. 9,60,000/- which has been cleared of. Hence, the respondent no.1 herein lodged a case of cheating as well as dishonor of cheque u/s 138 of the Negotiable Instruments Act, 1881.

5. Counsel thus submits that even if the allegations leveled by the

complainant in the said complaint are considered to be true and

correct, yet no explicit role of the petitioner has been disclosed in the

entire complaint, in the issuance of the said cheque which was returned

dishonored by the bank. Counsel further submits that undoubtedly the

petitioner is a joint account holder with her husband/respondent no.2 in

ICICI Bank , and for the purchase of the said flat, the cheque was issued

by respondent no.2 from their joint account. Counsel thus submits that a

mere fact that the petitioner happens to hold a joint account with her

husband will not make her vicariously liable in respect of the alleged act in terms of Section 138 of the Negotiable Instruments Act, 1881.

Based on the above submissions, counsel for the petitioner submits

that the learned trial court has wrongly summoned the petitioner and

has thereafter issued notice against the petitioner in terms of Section

251 Cr.P.C.

6. Opposing the present petition, counsel for the respondent no.1

submits that it is the petitioner and the respondent no.2 who had

jointly purchased the said flat from the respondent no.1 and therefore,

the petitioner cannot claim that she was not involved in the issuance

of the said dishonored cheque in question. Counsel also submits that

as per the admitted case of the petitioner, she was having a joint

account along with her husband and once the cheque was issued from

the joint account, the petitioner should be held equally liable for the said

dishonored cheque in terms of Section 138 of the Negotiable Instruments

Act, 1881. Counsel also submits that the complaint filed by the

respondent no.1 contains all the necessary averments attributing

specific role of the petitioner in issuing the said cheque and in

committing the offence by not paying the balance sale consideration

amount. Counsel also submits that the petitioner cannot separate

herself from her husband as both of them are joint purchasers of the

said flat and the cheque in question was issued from the joint bank

account of both of them.

7. I have heard learned counsel for the parties and given my thoughtful

consideration to the arguments advanced by them.

8. The respondent no.1/ complainant filed the complaint against

the petitioner and respondent no.2 inter alia on the ground that the

petitioner and the respondent no.2 , who are husband and wife had

agreed to purchase the flat bearing No. D-1/1/5 Front Side, DLF

Dilshad Ext.II, Village Brahmpur, Sahibabad, Distt. Gaziabad (U.P.)

owned by the respondent no.1 for a total sale consideration amount of

Rs.14,61,000/- and out of the total sale consideration amount, the

petitioner and the respondent no.2 had made certain cash payments in

installments and an amount of Rs. 2.12 lacs was paid by them

through a cheque bearing no. 610769 dated 1.12.2008 drawn on ICICI

Bank Limited, which after its presentation by the respondent no.1 to

the bank was returned dishonored with the remarks 'Insufficient Funds'.

It is the case of the complainant that the legal notice dated 9.3.2009

was sent by her to the accused persons to make the payment of the

amount in question and in reply they took a deceitful stand of having

paid the entire sale consideration amount towards the purchase of

the said flat. Based on these averments, the complainant has alleged

that the petitioner and the respondent no.1 have played fraud upon her

by not making the payment of balance sale consideration amount of Rs.

2.12 lacs. The complaint case was filed by the respondent no.1 under Section 138 of Negotiable Instruments Act, 1881 read with Section

420/34 IPC.

9. It is an admitted case between the parties that the trial court has not

framed any charges under Section 420/34 IPC and notice has been

issued against the petitioner and respondent no.2 for committing an

offence under Section 138 of the Negotiable Instruments Act, 1881. It is

also not in dispute between the parties that the petitioner is not the

drawer of the cheque which was dishonoured. A mere fact that the

petitioner has been maintaining a joint account along with her husband

cannot make her liable for the said quandary.

10. According to Section 138 of the Negotiable Instruments Act, 1881,

it refers to the payee or holder in due course of the cheque. It specifies

that after the dishonour of the cheque, the drawer of the same could be

brought to the wharf for the fault committed by him. For ready reference

Section 138 of the Act is enumerated below:

138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply ununlessunless-

unless:

(a) the cheque has been presented to the bank within a period of six months from me date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in the due course of the cheque, as me case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to me drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

11. From a bare reading of Section 138 of the Negotiable Instruments

Act, 1881, it transpires that the liability of the drawer of the cheque, who has

issued the cheque from the joint account maintained by him and his wife,

does not specifically bear any implication that the latter is equally responsible

even when the cheque was drawn by her husband and therefore, no vicarious

liability can be fastened on the holder of a joint account by a mere fact

that the dishonoured cheque was issued from the same account by the drawer

of such a cheque. The analogy of Section 141 of the Negotiable Instruments

Act, 1881 which deals with the offences of the company, cannot be

stretched to make the joint holder of a bank account vicariously liable to

face the prosecution under Section 138 of the Negotiable Instruments Act,

1881.