Madhya Pradesh High Court
Smt. Renu Singh vs Arun on 5 September, 2022
Author: Rajendra Kumar (Verma)
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 5th OF SEPTEMBER, 2022
MISC. CRIMINAL CASE No. 10726 of 2022
Between:-
SMT. RENU SINGH W/O SHAILENDRA SIGH,
AGED ABOUT 45 YEARS, OCCUPATION:
HOUSEWIFE R/O 300 RAMJI WATIKA TEJAJI
NAGAR CHOURAHA GRAM MIRZAPUR,
INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI DHARMENDRA YADAV, ADVOCATE)
AND
ARUN S/O SHRI VIJAYNARAYAN PANDEY, AGED
ABOUT 50 YEARS, OCCUPATION: BUSINESS R/O
115, RAMJI WATIKA TEJAJI NAGAR CHOURAHA
GRAM MIRZAPUR, INDORE (MADHYA
PRADESH)
.....RESPONDENT
(NONE FOR THE RESPONDENT)
This application coming on for admission this day, the court passed the
following:
ORDER
This petition under Section 482 of Cr.P.C. is directed against the order
dated 15.02.2022 passed by the learned Judicial Magistrate First Class, Indore
in criminal complaint case no.1708/2017 whereby the learned trial Court
dismissed the application under Section 251 of Cr.P.C. filed by the petitioner-
Renu Singh.
The brief facts of the case are that co-accused including the petitioner
have received loan amounting to Rs.30,000/- on 08.09.2014 and Rs.49,000/- on
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 06-09-2022
17:39:41
23.09.2014 for the purpose of business and co-accused gave two cheques of
Rs.49,000/- dated 10.08.2017 and Rs.30,000/- dated 25.08.2017 of Union Bank
of India which was dishonoured, therefore, complaint under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I.Act") was
registered against the petitioner.
Learned counsel for the petitioner submits that though she and her
husband co-accused Shailendra Singh are the joint account holder of the bank
account in Union of India, but the above cheques were issued by her husband
co-accused Shailendra Singh and not by the petitioner. Her signatures are not
on that cheques. The petitioner filed an application before the trial Court to
discharge her from the offence under Section 138 of the N.I.Act but her
application has been rejected on the ground that as the cheques have been
issued from the joint account, the petitioner cannot be discharged from the
liability and under the provisions of Cr.P.C.an accused cannot be discharged
from the liability and the Court cannot has no power to review the order.
Learned counsel for the petitioner has placed reliance on the judgment of
Hon'ble Supreme Court in the case of Aparna A.Shah Vs. M/s Sheth
Developers Pvt.Ltd. reported in AIR 2013 SC 3210 and prays for discharge
of the petitioner from the charges under Section 138 of the N.I.Act.
After service of notice, Vakalatnama was filed on 05.04.2022 on behalf of
the respondent, but nobody has appeared for the respondent today.
Heard learned counsel for the petitioner and perused the impugned order.
The copy of cheques allegedly given by the accused-Shailendra Singh are
on record and on perusal of copies of the cheques it is clear that there are only
signatures of Shailendra Singh and these cheques are not bearing the signatures
of the petitioner.
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 06-09-2022
17:39:41
Hon'ble Supreme Court in the case of Aparna A.Shah (Supra) has held
as under:-
"Under S. 138 of the Act, it is only the drawer of the cheque
who can be prosecuted. In the present case, the appellant is
not a drawer of the cheque and she has not signed the same.
A copy of the cheque brought to notice of Supreme Court
though contains name of the appellant and her husband, the
fact remains that her husband alone put his signature. In
addition to the same, 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. 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 41 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 a 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
proceedings under Section 138 of the Act. Thus, criminal
proceedings against appellant quashed."
Now it is settled law that all joint account holders may be prosecuted
under Section 138 only when their signatures are on the cheque. In the present
case, cheques are not bearing the signatures of the petitioner therefore it cannot
be said these cheques were issued by the petitioner also.
In view of the aforesaid this petition is allowed. The impugned order
dated 15.02.2022 passed by the learned Judicial Magistrate First Class, Indore
in criminal complaint case no.1708/2017 is hereby set aside to the extent that the
petitioner is discharged from charge for offence under Section 138 of N.I.Act.
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 06-09-2022
17:39:41
With the aforesaid, the M.Cr.C.stands disposed off.
(RAJENDRA KUMAR (VERMA))
JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 06-09-2022
17:39:41
