[2013} 7 S.C.R 69 MRS. APARNA A. SHAH v. MIS. SHETH DEVELOPERS PVT. LTD. & ANR. (Criminal Appeal No: 813 of 2013) JULY 1, 2013 (P. SATHASIVAll AND JAGDISH SINGH KHEHAR, JJ.]: NEGOTIABLE INSTRUMENTS ACT. 1881:
ss. 138 and 141 – Dishonour of cheque – Uabilily of joint c ac:counf holders – Complaint uls. 138 – Held: Under s. fla it is only the "drawer" of cheque who can be made liable for
penal action – Strict intetptetalion is required to be given to penal statutes – In a case of issuance of cheque from joint accooot a joint account holder cannot be proseculed unless 0 cheque has been signed by each and evety joint account
holder- Appellant has nd signed the cheque – s. 141. which deals with olfence tW. 138 committed by a company. is not atl1acteci-1t was never the case in the complaint that appellant was being ptoSeCUted as an association of individuals – The term "association of persons• has to be interpreted ejusdem E generis having regard to the purpose of the principle of
vicarious liability incotpotated in s. 141 – Proceedings as regatds appellant. quashed -Interpretation of statutes – Ejusdem generis. CODE OF CRIMINAL PROCEDURE. 1913: s. 482 – QUashing of criminal proceedings – Stage of
approaching the High Court – Explained. The appellant and her husband had a joint account G The latter issued a cheque from the said account. The cheque was dishonoured for "'insufficient funds•. On the
complaint by respondent no. 1-drawee. the lletn:apofitan Magistrate issued process against both of thela The High A Court refused to quash the proceedings. In the instant appeal filed by the wife, it was contended for the
appellant that in view of the provision of s. 138 of the Negotiable Instruments -Act, 1881 and the interpretation of the expression "drawer", issuance of process by the B Magistrate could not be sustained.
Allowing the. appeal, the Court HELD: 1.1 In order to constitute an offence u/s 138 of the Negotiable Instruments Act, 1881, this Court, in c Jugesh Sehgal's case enumerated the ingredients of the
section which are required to be fulfilled. The case on hand relates to criminal liability on account of dishonour of a cheque. It primarily falls on the drawer; if it is a Company, then on Drawer Company and is extended to
0 the officers of the company. The normal rule in the cases involving criminal liability is against vicarious liability. No one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on
account of specific provision being made in statutes E extending liability to others, e.g. s.141 of NI Act, which would have no application in the instant case. Strict interpretation is required to be given to penal statutes.
[para 8,13 and 23) [78-B; 79-B; 80-D-F; 84-G) Jugesh Sehgal vs. Shamsher Singh Gogi 2009 (10) F SCR 857 = (2009) 14 sec 683; and Sham Sunder and Others vs. State of Haryana, 1989 (3) SCR 886 = (1989) 4
sec 630 – relied on. S.K. A/agh vs. State of Uttar Pradesh and Others 2008 G (2) SCR 1088 = (2008) 5 SCC 662 – referred to. 1.2 It is not in dispute that the first respondent has not filed any complaint under any other provisions of the
Penal Code and, therefore, 'intention of the parties' is not attracted. Inasmuch as the appellant had annexed the H relevant materials, namely, copy of notice, copy of reply, APARNA A. SHAH v. SHETH DEVELOPERS PVT.
LTD. & ANR. copy of the complaint and the order issuing process which alone is relevant for consideration in respect of complaint uls 138 of the N.I. Act, it can not be said that the stand of the appellant has to be rejected for
suppressing of material facts or relevant facts. [para 14] [81-D, G-H] Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and Others, 2010 (5) SCR 927 = (2010) 4 SCC 728,
Balwantrai Chimanlal Trivedi vs. M.N. Nagrashna & Ors., AIR 1960 SC 1292, J.P. Builders & Anr. vs. A. Ramadas Rao & Anr. 201 o (15) SCR 538 = (2011) 1 sec 429 – held inapplicable.
1.3 Besides, it was never the case of the first resporident in the complaint filed before Magistrate that D the appellant wife was being prosecuted as an association of individuals. Since, this expression has not been defined, the same has to be interpreted ejusdem
generis having regard to the purpose of the principle of vicarious liability incorporated in s. 141. The terms "complaint", "persons" "association of persons" "company" and "directors" have been explained by this
Court in Raghu Lakshminarayanan's case. Therefore s.138 and the materials culled o'ut from the statutory notice, reply, copy of the complaint, order, issuance of process etc., clearly show only the drawer of the cheque
being responsible for the same. [para 15-16] [82-C-F] Raghu Lakshminarayanan vs. Fine Tubes, .2001 (4) SCR 885 = (2007) 5 sec 103 – relied on. Devendra Pundir vs. Rajendra Prasad Maurya,
Proprietor, Satyamev Exports Slo. Sri Rama Shankar Maurya, 2008 Cri'minal Law Journal 777, Gita Berry vs. Genesis Educational Foundation, 151 (2008) DLT 155, Smt. Bandeep Kaur vs. S. Avneet Singh, (2008) 2 PLR 796 – approved.
1.4 This Court, therefore. holds that uls 138 of the Act. it is only the '"drawer" of the cheque who can be prosecuted. Further,, uls 138 in case of issuance of che.que from joint accounts, a joint account holder
cannot be prosecuted unless the cheque has been B signed by each and every joint account holder. In the case on hand, the appellant is not a, drawer of the cheque and she has not signed the same. [para 22-2_3] [84-1).E,, F-GJ 2. It is to be noted that only after issuance of process.
C a person can approach the High Court seeking to quash the same on various grounds available to him. Therefore. the High Court was clearly wrong in holding that the prayer of the appellant could not even be considered as
the trial was in progress. Further. the High Court itself has directed the llagistrate to carry out the process of 0 admissionldenial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage. In the circumstances, the process in Criminal Case No.
1171ISSl2009 against the appellant pending before the court of Metropolitan llagisbate is quashed. (para 23 and E 24] [85-C-EJ Case Law Reference: 2009 (10) SCR 857 relied on para 8
2008 (2) SCR 1088 refened to para 10 1989 (3) SCR 886 relied on para 11 2010 (5) SCR 927 held inapplicable para 14 AIR 1960 SC 1292 held inapplicable para 14 2010 (15) SCR 538 held inapplicable para 14
2007 (4) SCR 885 relied on para 15 2008 Criminal Law approved para 17 Journal m APARNA A. SHAH v. SHETH DEVELOPERS PVT. LTD. &ANR. 151 (2008) DLT 155 approved para 19 (2008) 2 PLR 796
approved para 19 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 813 of 2013. From the Judgment and Order dated 24.09.2010 of the High Cowl of Judicature at Bombay in Criminal Writ Petition No. 1823 of 2010.
KV. VlShwanathan, NikhH Goel, Marsook Bafaki, Shivraj Gaonkar, Mehul M. Gupta, A. Venayagam Balan for the C Appellant Mukul Rohtagi, Huzefa Ahamdi, Mahesh Agalwal, Gaurav Goel. E.C. Agrawala, Rohan Shanna for the Respondents.
The Judgment of the Court was deli:'vered by P. SATHASIVAM,. J • 1. leave granted. 2. This appeal is directed against the final judgment and order dated 24.09.2010 passed by the High Court of E
Judicature at Bombay in Criminal Writ Petition No. 1823 of 2010 whereby the High Court partly allowed the petition filed by the appellant herein. 3. Brief facts: .a) Mis Sheth Developers Private Ltd.-the respondent
herein is a company incorporated under the provisions of the Companies Ad. 1956 having its registered office at 11, Vora Palace, M.G. Road, Kandivati (West). Mumbai_and is engaged in the business of land development and construdions.. Apama G A. Shah (the appellant herein) and Ashish Shah. her husband, are the Land Aggregators and Developers who have been in
the said business for the last 15 yems and are the owners of certain lands in and around Panvel. [2013) 7 S.C.R. b) According to the appellant, in January 2008, since the Company was interested in developing a Township Project and a Special Economic Zone (SEZ) project in and around Panvel, Dist. Raigad, Maharashtra, one Virender Gala of Mahavir
Estate Agency – the Broker, introduced them to the appellant B herein an.d her husband as the land owners holding huge land in Panvel. The appellant represented to the Company that the said land was ideal for the development of a Township Project and a Special Economic Zone (SEZ) and also that they have
no financial means and capacity to develop the same single c handedly. It was further represented that they were also looking for a suitable person, interested in developing the said land jointly with them.
(c) On believing the above said representations, the respondent-Company agreed for the development of the said D land jointly with the appellant herein and her husband. When the respondent-Company requested for inspection of the title
documents in respect of the said land, the appellant and her husband agreed for the same upon the entrustment of a token amount of Rs. 25 crores with an understanding between the E parties that the said amount would be returned if the project is not materialize. Agreeing the same, the respondent-Company issued a cheque of Rs. 25 crores in favour of the appellant herein and her husband. However, for various reasons, the
proposed joint venture did not materialize and it was claimed F by the appellant herein that the whole amount of Rs. 25 crores was spent in order to meet the requirements of the initial joint venture in the manner as requested by the respondent-
Company. (d) According to the appellant, again the respondent- G Company expressed interest to start a new project and to take financial facilities from their bank in order to submit a tender for the purchase of a mill land. With regard to the same, the respondent-Company approached the appellant herein and her husband and informed that they are not having sufficient
APARNA A SHAH v. SHETH DEVELOPERS PVT. LTD. & ANR. [P. SATHASIVAM, J.] securities to enable the bank to grant the facility and the bank is to show receivables in writing. Therefore, on an
understanding between the respondent and the appellant, a cheque of Rs. 25 crores was issued by the husband of the appellant from their joint account. It is the case of the appellant that in breach of the aforementioned understanding, on
05.02.2009, the respondent deposited the cheque with IDBI Bank at Cuffe Parade, Mumbai and the said cheque was dishonoured due to "insufficient fLmds". (e) On 18.02.2009, a statutory notice under Section 138
of the Negotiable Instruments Act, 1881 (in short 'the N.f. Act") was issued to the appellant and her husband asking them to repay the sum of Rs. 25 crores. On 06.03.2009, the appellant and her husband jointly replied mentioning the circumstances in which the said cheque was issued with the supporting fetters. (f) On 04.04.2009, a complaint was filed against the
appellant and her husband in the Court of the Metropolitan Magistrate, Dadar, Mumbai and the same was registered as Case No. 1171-SS of 2009. By order dated 20.04.2009, process was issued against them.
(g) On 12.01.2010, the appellant and her husband fifed an application objecting the exhibition of documents and the same was registered as Exh. 28. By order dated 11.05.2010, the said application was dismissed.
(h) Against the issuance of process dated 20.04.2009 and order dated 11.05.2010 dismissing the application by the Magistrate, the appellant filed Writ Petition No. 1823 of 2010 before the High Court. The High Court, by impugned order
dated 24.09.2010, partly allowed the petition and quashed the order dated 11.05.2010 and directed the Magistrate to decide the objections raised by the counsel for the accused after hearing both the sides, but refused to quash the proceedings. {i) Aggrieved by the said order, the appellant has filed the [2013} 7 S.C.R.
A above appeal by way of special teave. 4. Heard Mr. KV. VIShwanathan, learned senior counsel for the appellant and Mr. Mukul Rohlagi, learned senior counsel for respondent No.1. B Contentions:
5. Mr. KV. Vishwanathan, reamed senior counsel for the appellant. by drawing our attention to Section 138 of the NJ. Act as well as various decisions of this Court relating to c interpretation of the expression "drawer-, submitted that the issuance of process by learned Magistrate cannot be
sustained. On the other hand, Mr. Mukul Rohtag~ learned seni'lr counsel for respondent No.11the complainant submitted that inasmuch as the instant case is squarely covered by Sectioo 0 141 of the NJ. Act and that the accused persons. namely. Ashish Shah and Apama Shah (appellant No.1} are an
association of individuals as envisaged under Section 141. learned Magistrate was fully justified in issuing process He also submitted that the transaction wilh respondent No.1 herein was E negotiated by both the accused. the cheque which had been issued by respondent No.1 was deposited in the joint account maintained by both the accused. the cheque bears the name
and stamp of both the accused and by suppressing all the materials. the appellant has approached the High Court and this F Court. hence her claim has lo be rejected on the ground of concealing/suppressing material fads. He finally pointed out that inasmuch as the trial has commenced and the appellant will have her remedy during tria~ the High Court was right in cflSmissing her petition filed under Section 482 of the Code of Criminal Procedure. 1973 ran short 'the Code').
6. We have carefufJy considered the rival submissions and perused aD the relevant materials. Discussion: 7. In Ofdef to understand the rival contentions. ii is useful APARNA A. SHAH v. SHETH DEVELOPERS PVT.
LTD. & ANR. [P. SATHASIVAM. J.] to refer Section 138 of the NJ. Ad. which reads 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 B out of that account for the discharge, in whole or in part of any debt or other liabifity, 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 c account by an anangement made with that bank, such person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Ad. be punished with imprisonment for a tenn which may extend to two years, or with fine which may extend to twioe 0 the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply Unles$- (a} the cheque has been presented to the bank within E · 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 F 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 cheque as unpaid; and (c) the drawer of such cheque fails to make the G 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, ndebt H or other liability" means a legally enforceable debt or other liability". 8. In order to constitute an offence under Section 138 of
the N.I. Act, this Court, in Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683, noted the following ingredients which are required to be fulfilled: "{i) a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain amount· of money to another person from out of that account, {ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
{iii) that 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; {iv) that cheque is returned by the bank unpaid, either
because of the amount of money standing to the credit of the 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 the bank;
{v) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; {vi) the drawer of such cheque fails to make payment of
the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned
ingredients are satisfied that the person who had drawn APARNA A. SHAH v. SHETH DEVELOPERS PVT. LTD. & ANR. [P. SATH.ASIVAM, J.] the cheque can be deemed to have committed an offence under Section 138 of the Act."
Considering the language used in Section 138 and taking note of background agreement pursuant to which a cheque is issued by more than one person, we are of the view that it is only the "drawer" of the cheque who can be made liable for the penal action under the provisions of the N.I. Act. It is settled law that strict interpretation is required to be given to penal statutes.
9. In Jugesh Sehgal (supra), after noting the ingredients · C for attracting Section 138 on the facts of the case, this Court. concluded that there is no case to proceed under Section 138 of the Act. In that case, on 20.01.2001, the complainant filed an FIR against all the accused for the offence under Sections 420, 467, 468, 471 and 406 of the Indian Penal Code, 1860
(hereinafter referred to as "IPC) and there was hardly any dispute that the cheque, subject-matter of the complaint under Section 138 of the N.I. Act, had not b.een drawn by the appellant on an account maintained by him in Indian Bank,
Sonepat Branch. In the light of the ingredients required to be fulfilled to attract the provisions of Section 138, this Court, after finding that there is little doubt that the very first ingredient of Section 138 of the N.I. Act enumerated above is not satisfied and concluded that the case against the appellant for having committed an offence under Section 138 cannot be proved.
10. In S.K. Alagh vs. State of Uttar Pradesh and Others, (2008) 5 SCC 662, this Court held: 19 …….. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a
Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself. (See Sabitha Ramamurthy v. R.B.S. Channabasavaradhya, (2006) 10 SCC 581)"
(2013] 1 S.C.R. 11. In Sham Sunder and OthetS vs. State Of Haryana, (1989) 4 sec 630. this Court held as under. "9. The penal provision must be stricUy construed in the first place. Secondly, there is no vicarious liability in
aiminal law unless the statute takes that also within i1s fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they
do business or not" 12. As rightly pointed out by learned senior counsel for the appellant, the interpretation sought to be advanced by the respondents would add wolds to Section 141 and extend the
principle of vicarious liability to persons who are not named in it 13. In the case on hand, we are concerned with criminal liabiflly on account of dishonour of a cheque. It primarily falls on the drawer, if it is a Company, then Drawer Company and is extended to the officers of the company. The nonnal rule in the cases involving criminal liability is against vicarious liability. To put it clear, no one is to be held criminally liable for an ad of another. This normal rule is, however, subject to exception on account of specific provision being made in statutes
extending liabifdy to others. For example, Section 141 of the N.I. Act. is an instance of specific provision that in case an offence under Section 138 is committed by a company, the
criminal liabmty for dishonour of a cheque will extend to the officers of the company. As a matter of fad, Section 141 contains conditions which have to be satisfied before the liability can be extended. Inasmuch as the provision creates a criminal liability, the cond"ltions have to be stridly complied with. In other G words, the persons who had nothing to do with the matter, need not be roped in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the ads done in the name of the company, are sought to be made personally liable for the acts which result in criminal action being taken APARNA A. SHAH v. SHETH DEVELOPERS PVT.
LTD. & ANR. [P. SATHASIVAM, J.] against the company. In other words, it makes every person who, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of
business of the company, as well as the company, liable for the offence. It is true that the proviso to sub-section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to
prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused
being the company itself. It is a departure from the rule in c criminal law against vicarious liability. 14. It is not in dispute that the first respondent has not filed any complaint under any other provisions of the penal code and, therefore, the argument pertaining to the intention of the parties is completely misconceived. We were taken through the notice issued under the provisions of Section 138, reply given thereto, copy of the complaint and the order issuing process. In this regard, Mr.Mukul Rohatgi, learned senior counsel for the
respondent after narrating the involvement of the appellant herein and her husband contended that they cannot be permitted to raise any objection on the ground of concealing/ suppressing material facts within her knowledge. For the said purpose, he relied on Oswal Fats and Oils Limited vs.
Additional Commissioner (Administration), Bareilly Division, Bareifly and Others, (2010) 4 SCC 728, Balwantrai Chimanla/ Trivedi vs. M.N. Nagrashna & Ors., AIR 1960 SC 1292, J.P. Builders & Anr. vs. A. Ramadas Rao & Anr., (2011) 1 SCC
429. Inasmuch as the appellant had annexed the relevant materials, namely, copy of notice, copy of reply, copy of the complaint and the order issuing process which alone is relevant for consideration in respect of complaint under Section 138 of the N.I. Act, the argument of learned senior counsel for
Respondent No.1 that the stand of the appellant has to be rejected for suppressing of material facts or relevant facts, cannot stand. In such circumstances, we are of the view that [2013) 7 S.C.R.
A the case law relied upon by the contesting respondent No.1 is inapplicable to the facts of the present case. 15. Mr. Mukul Rohtagi, learned senior counsel for respondent No.1, by drawing our attention to the definition of "person" in Section 3(42) of the General Clauses Act, 1897 submitted that in view of various circumstances mentioned, the appellant herein being wife, is liable for criminal prosecution. He also submitted that in view of the explanation in Section 141(2) of the N.I. Act, the appellant wife is being prosecuted as an association of individual. In our view, all the above C contentions are unacceptable since it was never the case of respondent No.1 in the complaint filed before learned
Magistrate that the appellant wife is being prosecuted as an association of individuals and, therefore, on this ground alone, the above submission is liable to be rejected. Since, this D expression has not been defined, the same has to be
interpreted ejusdem generis having regard to the purpose of the principle of vicarious liability incorporated in Section 141. The terms "complaint", "persons" "association of persons"
"company" and "directors" have been explained by this Court E in Raghu Lakshminarayanan vs. Fine Tubes, (2007) 5 SCC 103. 16. The above discussion with reference to Section 138 and the materials culled out from the statutory notice, reply, F copy of the complaint, order, issuance of process etc., clearly show that only the drawer of the cheque being responsible for the same.
17. In addition to our conclusion, it is useful to refer some of the decisions rendered by various High Courts on this issue. 18. Learned Single Judge of the Madras High Court in Devendra Pundir vs. Rajendra Prasad Maurya, Proprietor,
Satyamev Exports Slo. Sri Rama Shankar Maurya, 2008 Criminal Law Journal 777, following decisions of this Court, has H concluded thus: APARNA A. SHAH v. SHETH DEVELOPERS PVT. LTD. & ANR. [P. SATHASIVAM, J.]
"7. This Court is of the considered view that the above proposition of law laid down by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case. Even in this case, as already pointed out, the first accused is admittedly the sole proprietrix of the concern namely, "Kamakshi Enterprises" and as such,
the question of the second accused to be vicariously held liable for the offence said to have been committed by the first accused under Section 138 of the Negotiable Instruments Act not at all arise."
After saying so, learned Single Judge, quashed the proceedings initiated against the petitioner therein and permitted the Judicial Magistrate to proceed and expedite the trial in respect of others.
19. In Gita Berry vs. Genesis Educational Foundation, 151 (2008) DLT 155, the petitioner therein was wife and she filed a petition under Section 482 of the Code seeking quashing of the complaint filed under Section 138 of the N.I. Act The case of the petitioner therein was that the offence under Section 138 of the Act cannot be said to have been made out against her only on the ground that she was a joint account holder along with her husband. It was pointed out that she has neither drawn nor issued the cheque in question and, therefore, according to her, the complaint against her was not
maintainable. Learned Single Judge of the High Court of Delhi, after noting that the complaint was only under Section 138 of the Act and not under Section 420 IPC and pointing out that nothing was elicited from the complainant to the effect that the petitioner was responsible for the cheque in question, quashed the proceedings insofar as the petitioner therein.
20. In Smt. Bandeep Kaur vs. S. Avneet Singh, (2008) 2 PLR 796, in a similar situation, learned Single Judge of the Punjab and Haryana High Court held that in case the drawer of a cheque fails to make the payment on receipt of a notice, then the provisions of Section 138 of the Act could be attracted (2013) 7 S.C.R.
A against him only. Learned Single Judge further held that though the cheque was drawn to a joint bank account which is to be operated by anyone, i.e., the petitioner or by her husband, but the controversial document is the cheque, the liability regarding dishonouring of which can be fastened on the drawer of it. After B saying so, learned Single Judge accepted the plea of the petitioner and quashed the proceedings insofar as it relates to her and permitted the complainant to proceed further insofar as against others.
21. In the light of the principles as discussed in the earlier C paras, we fully endorse the view expressed by the learned Judges of the Madras, Delhi and Punjab & Haryana High Courts.
22. In the light of the above discussion, we hold that under D Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the
appeHant 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 E 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.
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 Section 141 of the N.I. Act G 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 H culpability attached to dishonour of a cheque can, in no case APARNA A. SHAH v. SHETH DEVELOPERS PVT.
LTD. & ANR. [P. SATHASIVAM, J.] "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 stllnd of the appeHant 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 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. 24. Under these circumstances, the appeal deserves to be allowed and process in Criminal Case No. 1171 /SS/2009 pending before the Court of learned Metropolitan Magistrate 13th Court, Dadar, Mumbai deserves to be quashed,
accordingly, quashed against the appellant herein. The appeal is allowed. R.P. Appeal allowed.