Madras High Court
Mrs. Brindha … vs V. Jeyakrishnan (Died) on 16 November, 2021
Crl.O.P.No.24226 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :16.11.2021
CORAM
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
Crl.O.P.No.24226 of 2015
and
M.P.Nos.1 & 2 of 2015
Mrs. Brindha … Petitioner
Vs
1. V. Jeyakrishnan (died)
2. J. Maheswari
W/o. late V.Jeyakrishnan ... Respondents
(The 2nd respondent is impleaded as L.R of the
first respondent as per the order of this Court
in Crl.M.P.No.8729 of 2021 dated 16.11.2021)
Criminal Original Petition filed under Section 482 of Criminal
Procedure Code to call for the entire records pertaining to all further
proceedings in STC No.5975 of 2014 pending on the file of the Judicial
magistrate, Sathyamangalam and quash the same as illegal, in competent
and without jurisdiction.
1/7
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24226 of 2015
For petitioner ... Mr. D.Velmurugan
For respondent ... Mr. M. Poovalingam
ORDER
The petitioner, who is A2 in STC No.5975 of 2014 on the file of the
Judicial Magistrate, Sathyamangalam, Chennai, is before this Court with
this quash petition.
2. The case of the complainant is that A1, who is the husband of the
petitioner, borrowed a sum of Rs.50,000/- in the month of November 2013
from the complainant. In order to discharge the above loan, A1 has issued a
cheque in a joint account maintained by both A1 and A2. When the same
was presented for collection, it was dishonored on the ground of "Account
Closed". After complying with the legal requirements, the complainant
filed the complaint under Section 138 of Negotiable Instruments Act and the
learned Judicial Magistrate taken cognizance for offences under sections
138 and 142 of Negotiable Instruments Act and issued process. Now, the
present petition has been filed by A2 to quash the private complaint.
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Crl.O.P.No.24226 of 2015
3. The learned counsel for the petitioner would submit that even
though it is a joint account in the name of A1 and A2, admittedly, the
cheque was issued by A1/Husband only. In those circumstances, the
petitioner/A2 cannot be made as an accused. Only with an intention to
harass, the present complaint has been filed. In respect of his contention, the
learned counsel also relying upon a judgment reported in AIR 2013 SC
3447 ( Mrs.Aparna A.Shah -vs- M/s.Sheth Developers Pvt. Ltd &
Another ) .
4. The learned counsel for the respondent would submit that both the
husband and wife jointly borrowed the amount and issued a cheque in the
joint account owned by them. After issuance of the cheque, they
deliberately closed the account in order to avoid the repayment. In the above
circumstances, the trial Court rightly taken cognizance against both the
accused and they are jointly liable to pay the amount and hence, the
petitioner cannot escape from her liability.
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Crl.O.P.No.24226 of 2015
5. This Court considered the rival submissions made on either side
and perused the materials available on records carefully.
6. Admittedly, the cheque has been issued in the joint account
maintained by both A1 and A2. But, the cheque has been signed only by
A1/ husband and the petitioner/A2 is not a signatory to the cheque. In the
said circumstances, the petitioner cannot made liable for the prosecution,
and A1, who was the drawer of the cheque alone is liable to be prosecuted
under Section 138 of Negotiable Instruments Act. As the petitioner is not a
drawer of the cheque, no prosecution can be initiated against her. In similar
circumstances, the Hon'ble Supreme Court, in the case of Mrs.Aparna
A.Shah -vs- M/s.Sheth Developers Pvt. Ltd & Another reported in AIR
2013 SC 3447, has held as follows:
"23. 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 Sectin 141 of the N.I.
Act which would have no application in the case on
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Crl.O.P.No.24226 of 2015
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
quashing of the same on various ground available to
him.
7. Considering the above facts, this Criminal Original Petition is
allowed and the case against the petitioner/A2 in STC No.5975 of 2014 on
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Crl.O.P.No.24226 of 2015
the file of the Judicial Magistrate, Sathyamangalam, is quashed. Since the
case is pending from the year 2014, the trial Court is directed to proceed
with the trial against A1 and dispose the same within a period of three
months from the date of receipt of a copy of this order. Consequently,
connected miscellaneous petitions are closed.
16.11.2021
Index: Yes/ No 2/2
Speaking Order/Non-speaking Order
mrp
To
1. The Inspector of Police,
K10 Koyambedu Police Station,
Chennai District.
2. The Public Prosecutor,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24226 of 2015
V. BHARATHIDASAN, J.
mrp
Crl.O.P.No.24226 of 2015
16.11.2021
https://www.mhc.tn.gov.in/judis
