Karnataka High Court
Smt Pramila vs Dr Mallikarajuna H B on 9 March, 2022
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.6798 OF 2020
BETWEEN
SMT PRAMILA
WIFE OF R ARUN
AGED ABOUT 35 YEARS,
GARUDACHARPALYA,
NEXT TO ANANTHARAMAIAH'S HOUSE
WHITEFIED ROAD,
BENGALURU - 560 048
... PETITIONER
[BY SRI. ROHAN HOSMATH, ADV.]
AND
DR. MALLIKARAJUNA H B
SON OF BUDI SIDDAPPA H B,
AGED ABOUT 55 YEARS OLD
RESIDING AT NO.48,
3RD MAIN, ADITYA NAGAR,
HARI NAGAR KOTHNUR MAIN ROAD,
ANANJAPURA POST,
1ST BLOCK, J P NAGAR,
8TH PHASE, BENGALURU SOUTH TALUK,
BENGALURU - 560 062
... RESPONDENT
[BY SRI. CHETAN JADHAV, ADV.]
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE CRIMINAL
PROCEEDINGS INITIATED BY THE RESPONDENT AGAINST
THE PETITIONER/ACCUSED NO.1, IN C.C.NO.21737/2019,
BEFORE THE COURT OF XIX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE BENGALUR CITY.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court calling in
question the proceeding in C.C.No.21737/2019,
registered for offence punishable under Section 138 of
the Negotiable Instruments Act, 1881.
2. Heard Sri.Rohan Hosmath, learned counsel
appearing for the petitioner, Sri. Chethan Jadhav,
learned counsel for the respondent.
3. Sans details, the facts in brief germane for
consideration of the subject lis, are as follows:
The transaction between the husband of the
petitioner and the respondent - complainant with
regard to a landed property, results in issuing two
cheques in favour of the complainant. One by the
petitioner for Rs.17,00,000/- and the other by the
husband of the petitioner for an amount of
Rs.47,80,000/-. The cheque for an amount of
Rs.17,00,000/- was honoured and the cheque given for
Rs.47,80,000/- is dishonoured, on the ground of want
of sufficient funds.
4. This led the complainant to take out legal
proceedings against the petitioner and registration of a
private complaint under Section 200 of Cr.P.C., for
offence punishable under Section 138 of the Negotiable
Instruments Act.
5. The cognizance having been taken in the
matter against the petitioner and her husband has
driven the petitioner to this Court, in the subject
petition.
6. Learned counsel Sri.Rohan Hosmath,
appearing for the petitioner would submit the
proceedings against the petitioner cannot continue as
the petitioner is indisputably not a signatory to the
cheque and a non-signatory to the cheque cannot be
hauled into criminal proceedings is what the Apex Court
has consistently held as followed in the latest judgment
in the case of Alka Khandu Avhad vs Amar Syamprasad
Mishra and another reported in (2021) 4 SCC 675.
7. On the other hand, the learned counsel
appearing for the respondent - complainant would
submit that the petitioner is the master mind behind
the entire transaction and it is a matter of trial for the
petitioner to come out clean, notwithstanding the fact
that she is not a signatory to the cheque.
8. I have given my anxious consideration to the
contentions of respective learned counsel and have
perused the material on record.
9. The afore-narrated facts with regard to
transaction is not in dispute. The cheque that was
issued for an amount of Rs.47,80,000/- is appended to
the petition. The signatory to the cheque is one R.Arun,
who is the husband of the petitioner.
10. Admittedly, the petitioner is not a signatory
to the cheque. Not being a signatory to the cheque,
cannot be hauled into criminal proceedings, is the law
laid down by the Apex Court in its latest judgment in
the case of Alka Khandu Avhad vs. Amar
Syamprasad Mishra and another reported in (2021) 4
SCC 675, wherein the Apex Court has held as follows:
"8. We have heard learned counsel
appearing on behalf of the respective parties
at length, considered material on record and
also considered the averments and
allegations in the complaint. It emerges from
the record that the dishonoured cheque was
issued by original Accused 1 husband of the
appellant. It was drawn from the bank
account of original Accused 1. The
dishonoured cheque was signed by original
Accused 1. Therefore, the dishonoured cheque
was signed by original Accused 1 and it was
drawn on the bank account of original
Accused 1. The appellant herein-original
Accused 2 is neither the signatory to the
cheque nor the dishonoured cheque was
drawn from her bank account. That the
account in question was not a joint account.
In the light of the aforesaid facts, it is
required to be considered whether the
appellant herein - original Accused 2 can be
prosecuted for the offence punishable under
Section 138 read with Section 141 of the NI
Act?
9. 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:
9.1. That the cheque is drawn by a
person and on an account maintained by him
with a banker.
9.2. 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.
9.3. 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.
10. 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."
In the light of the judgment of the Apex Court,
while considering the purport of Section 138 of the
Negotiable Instruments Act, on a non-signatory to the
instrument, has held, such non-signatory cannot be
haled up for criminal proceedings following the
judgment of the Apex Court in the case of Alka Khandu
Avhad (supra), continuing of the proceedings against
the petitioner, would be an abuse of process of law and
result in miscarriage of justice.
11. For the aforesaid reasons, the following:
ORDER
i) Criminal Petition is allowed.
ii) The proceedings in C.C.No.21737/2019, on the
file of XIX Additional Chief Metropolitan
Magistrate, Bengaluru City stands quashed,
qua the petitioner.
Sd/-
JUDGE
KG
