Gujarat High Court
Ketnaben D/O. Dhirajbhai ... vs State Of Gujarat on 2 September, 2023
Bench: Sandeep N. Bhatt
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R/SCR.A/6307/2019 JUDGMENT DATED: 02/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6307 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 7060 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 7055 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 7061 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 7122 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KETNABEN D/O. DHIRAJBHAI MAJITHIYA W/O. RUCHIR DIPAKBHAI
POPAT
Versus
STATE OF GUJARAT
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Appearance:
MR VH KANARA(1881) for the Applicant(s) No. 1
SHIVANGI D VYAS(10117) for the Applicant(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/09/2023
Page 1 of 9
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COMMON ORAL JUDGMENT
1. These petitions are filed under Article 226 of
the Constitution of India read with Section 482 of the
Code of Criminal Procedure, 1973 (`the Code' for short)
for quashing and setting aside the complaints being
Criminal Case Nos.8122 of 2018, 8081 of 2018, 189 of
2019, 8194 of 2018 and 188 of 2019 respectively pending
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in the Court of learned 11 Additional Chief Judicial
Magistrate, Jamnagar filed under the provisions of the
Negotiable Instruments Act (`NI Act' for short).
2. The facts giving rise to filing of these petitions
are such that the complainant-respondent no.2 herein has
filed the impugned complaints stating that she was
having good relations with the present applicant as they
were co-teachers; that during the year 2015-17, accused
no.1 and the present petitioner had time and again
borrowed amounts from respondent no.2 and as a part
payment, gave cheques, on deposit of the same, they
returned with the endorsement `insufficient funds'; that
the respondent no.2-complainant gave a legal notice to
which the petitioner gave reply, however, the amount is
not paid and therefore the complaints are filed, which
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are prayed to be quashed by way of these petitions.
3. Heard learned advocates for the parties.
3.1 Learned advocate Mr.Kanara for the petitioner
submitted that cheques in question were issued by
accused no.1 in his personal capacity; that the petitioner
is not the drawer of the cheque; that the petitioner is
the wife of the accused no.1 who has signed the cheque;
that the petitioner has neither signed the cheques nor
she is the joint account holder; that there are no specific
averments as required under the law in the complaints
so as to make the petitioner liable under the offences
invoked in the complaints; that the cheques had not
been drawn by the petitioner on an account maintained
by her. He, therefore, prayed to allow these petitions as
no ingredients under Section 138 of the NI Act are
made out qua the applicant.
4. Per contra, learned APP Mr.Jayswal for
respondent no.1-state and learned advocate Mr.Vyas for
the respondent no.2-complainant have objected these
petitions and submitted that this Court should not
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exercise its powers by interfering with the proceedings of
recovery of amount and the proceedings initiated under
Section 138 of the Act are perfectly justified.
5. Learned advocate Mr.Joshi further submitted
that there are disputed questions of fact of borrowing of
amount from the respondent no.2-complainant and
therefore it needs leading of evidence and full fledged
trial. He, therefore, prayed to dismiss these petitions.
6. I have considered the rival submissions and
perused the material on record.
7. At the outset, the provisions of Sections 138
of the NI Act are required to be seen, which read as
under:
"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
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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 extend to two
year", 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
unless
(a) The cheque has been presented to the bank within a
period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier.
(b) The payee or the holder induce course of the cheque, as
the case may be, makes a demand for the payment of the
said amount of money by giving a notice, in writing, to the
drawer, of the cheque, "within thirty days" of the receipt of
information by him from the bank regarding the return of
the cheques 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.
Explanation: For the purpose of this section, "debt or other
liability"
means a legally enforceable debt or other liability."
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8. Now, if the facts of the present case are
perused, it transpires from the record that the cheques
were issued by the husband of the petitioner herein;
they are not signed by the petitioner; the petitioner
cannot be held liable for the offence under Section 138
of the NI Act only for the reason that she is the wife of
the signatory. Section 138 of the NI Act clearly
envisages that the drawer of the cheque is responsible
for the offence. In this case the drawer of the cheque is
husband of the petitioner and not the petitioner.
9. In the case of Aparna A Shah V/s Sheth
Developers Pvt.Ltd. And Ors., reported in (2013)8 SCC
71 relied on by learned advocate for the applicant, it is
held in paragraphs 27 and 28 as under:
"27) In the light of the above discussion, we hold that
under Section 138 of the Act, it is only the drawer of the
cheque who can be prosecuted. In the case on hand,
admittedly, the appellant is not a drawer of the cheque and
she has not signed the same. A copy of the cheque was
brought to our notice, though it contains name of the
appellant and her husband, the fact remains that her
husband alone put his signature. In addition to the same, a
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bare reading of the complaint as also the affidavit of
examination-in- chief of the complainant and a bare look at
the cheque would show that the appellant has not signed
the cheque.
28) 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. The 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 issuance of
process, a person can approach the High Court seeking
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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 High Court itself has directed the Magistrate to
carry out the process of admission/denial of documents. In
such circumstances, it cannot be concluded that the trial is
in advanced stage."
10. It is also fruitful to refer to the judgment in
case of Alka Khandu Avhad V/s Amar Syamprasad
Mishra reported in (2021)4 SCC 675, equivalent citation
is AIR Online 2021 SC 124, wherein it is held in
paragraphs 7,8 and 8.1 as under:
"7. On a fair reading of Section 138 of the NI Act, before a
person can be prosecuted, the following conditions are
required to be satisfied:
i) that the cheque is drawn by a person and on an account
maintained by him with a banker;
ii) for the 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; and
iii) the said cheque 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.
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Therefore, a person who is the signatory to the cheque and
the cheque is drawn by that person on an account
maintained by him and the cheque has been issued for the
discharge, in whole or in part, of any debt or other liability
and the said cheque has been returned by the bank unpaid,
such person can be said to have committed an offence.
Section 138 of the NI Act does not speak about the joint
liability. Even in case of a joint liability, in case of
individual persons, a person other than a person who has
drawn the cheque on an account maintained by him, cannot
be prosecuted for the offence under Section 138 of the NI
Act. A person might have been jointly liable to pay the
debt, but if such a person who might have been liable to
pay the debt jointly, cannot be prosecuted unless the bank
account is jointly maintained and that he was a signatory to
the cheque."
11. In view of the above discussion, these petitions
are allowed. Criminal Case Nos.8122 of 2018, 8081 of
2018, 189 of 2019, 8194 of 2018 and 188 of 2019
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respectively pending in the Court of learned 11
Additional Chief Judicial Magistrate, Jamnagar are
hereby quashed and set aside qua the present petitioner.
Direct service is permitted.
(SANDEEP N. BHATT,J)
SRILATHA
