Madhya Pradesh High Court
Smt. Afsa Khan vs Mohd. Tareek on 19 June, 2023
Author: Prakash Chandra Gupta
1
M.C.R.C. No.60202/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 19th OF JUNE, 2023
MISC. CRIMINAL CASE No. 60202 of 2021
BETWEEN:-
SMT. AFSA KHAN W/O GULAM DASTGEER DEHELVI,
AGED ABOUT 39 YEARS, OCCUPATION: BUSINESS R/O 62-
C, ADARSH MECHANIC NAGAR, BADI BHAMORI, NEAR
SAYAJI CLUB, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAGHVENDRA SINGH RAGHUVANSHI - ADVOCATE)
AND
MOHD. TAREEK S/O MOHD. YUSUF R/O 143, JAWAHAR
MARG, INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ARVIND KUMAR SHARMA - ADVOCATE)
--------------------------------------------------------------------------------------
This application coming on for hearing this day, the court passed the
following:
ORDER
With the consent of learned counsels for both the parties, the
matter has been heard finally.
2. This petition filed under Section 482 of the Code Of Criminal
M.C.R.C. No.60202/2021
Procedure, 1973, by the petitioner/accused No.1 challenging the
impugned summons (Annexure - P1) issued by Court of Judicial
Magistrate First Class, Indore in case No.UNCR 3589/ 2020, impugned
criminal complaint dated 11/09/2020 (Annexure - P2) filed against her
and her husband/accused No.2 by the respondent/complainant under
Section (hereinafter as u/S) 138 of the Negotiable Instruments Act, 1881
(hereinafter as NI Act) and all the consequent entire criminal
proceedings therein.
3. Facts of the case in short are that accused persons are wife and
husband amongst and both the parties are known to each other. Accused
persons were in need of loan, thus on their request the complainant had
given Rs.5,00,000/- in Bank A/c of petitioner/accused No.1 on
26/06/2020 through RTGS. The complainant had also given
Rs.2,00,000/- to accused No.2 in presence of accused No.1. The accused
No.2 had issued a cheque of Rs.7,00,000/- on 17/06/2020 to repay the
loan amount in favour of the complainant, but the aforesaid cheque was
dishonoured on 20/06/2020. The complainant had given notice to the
accused persons despite of that they had not repaid the loan amount.
Therefore, he filed a complaint against the accused persons.
4. Learned counsel for the petitioner/accused No.1 has submitted
that she had not signed and issued any cheque in favour of the
complainant/respondent. The questioned cheque was issued only by her
husband/accused No.2. Therefore, complaint u/S 138 of the NI Act,
against the petitioner is nothing but abuse of process of law. Therefore,
she has prayed for quashing of private complaint registered against her.
M.C.R.C. No.60202/2021
Learned counsel has placed reliance on the case of Mrs. Aparna A.
Shah V M/S Seth Developers Pvt. Ltd. And Ors. [Reported in AIR
2013 SC 1230] and Smt. Archana Kanthed V M/S Shree Vinayak Sales
Through Smt. Rakhi Kocheta [Order Dated 20/02/2019 passed in
MCRC no. 8520/ 2017].
5. Learned counsel for the respondent supported the impugned
order and prays for rejection of the petition.
6. I have heard learned counsel for the parties and perused the
record.
7. For deciding the matter it is apposite to reproduce Section 138
of NI Act, which runs 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 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 provision of this Act, be punished with
M.C.R.C. No.60202/2021
imprisonment for 4 [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 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 in due 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, 5 [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. Explanation.
--For the purposes of this section, "debt of other
liability" means a legally enforceable debt or other
liability."
8. In the case of Mrs. Aparna A. Shah (Supra) the Apex Court in
Paragraph 22 has held as under:-
M.C.R.C. No.60202/2021
(22) 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 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."
9. In the case of Smt. Archana Kanthed (Supra), coordinate
bench of this Court relying upon the judgment of Mrs. Aparna A. Shah
(Supra) has held that having regard to the aforesaid, no ground to
prosecute the petitioner exists, therefore, prosecution initiated against
her deserves to be quashed.
10. From the perusal of the instant case, it appears that the
questioned cheque was not issued by the petitioner/accused No.1 and
also not signed by her. The aforesaid cheque is issued only by the
accused No.2 and also signed by him. Therefore, the petitioner cannot be
prosecuted u/S 138 of the NI act. Though it appears that the
complainant/respondent had given Rs.5,00,000/- to the petitioner in her
bank account through RTGS on 26/06/2019 but, she has not issued any
M.C.R.C. No.60202/2021
cheque of the aforesaid amount in favour of the complainant. Therefore,
on the basis of aforesaid ground, she cannot be prosecuted u/S 138 of
the NI Act. Therefore, prosecution initiated against the
petitioner/accused No.1 is liable to be quashed.
11. Consequently, the petition is allowed. Proceeding pending
before the Court of JMFC, Indore in case No.UNCR 3589/2020, u/S 138
of the NI Act against the petition, is hereby quashed.
With the aforesaid, the petition stands allowed and disposed off.
(PRAKASH CHANDRA GUPTA)
JUDGE
Shruti
Digitally signed by SHRUTI JHA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH COURT
OF MADHYA PRADESH BENCH INDORE,
SHRUTI JHA
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postalCode=452001, st=Madhya Pradesh,
serialNumber=975D0201B09C38473541A490
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FBF4, cn=SHRUTI JHA
Date: 2023.06.20 19:22:51 +05'30'
