2021 (7) TMI 1149 - HC - Indian Laws

Dishonor of Cheque - chque was signed by the Husband (who was not the joint holder) - allegation is that ingredients as contemplated in Section 138 of the Negotiable Instruments Act having not been fulfilled - debt or liability on the part of the drawer of the cheque or not - Section 138 of the Negotiable Instruments Act - HELD THAT - It is evident that to take action against non-payment of any cheque amount due to its return by the bank as unpaid, there should exist any debt or liability on the part of the drawer of the cheque and the recipient of the cheque. In the present case, it is the admitted stand of the parties that there was no debt or liability on the part of the petitioner to the complainant. Therefore, mere issuance of cheque belonging to the petitioner would not suffice to attract Section 138 of the Negotiable Instruments Act in the absence of the other ingredients of the said section being fulfilled. Further, it is to be pointed out that it is the admitted case of the defacto complainant that the bank account belongs to the petitioner. However, the cheque has been drawn by the husband of the petitioner. It is not the case of the defacto complainant that the account is a joint account. In that backdrop, a perusal of the cheque reveals that the cheque has been signed by P.Ramachandran and P.Rajeswari does not seem to be the signatory to the cheque. In such a scenario, taking action on the petitioner, who is merely the account holder, but who has not issued the cheque, would be wholly impermissible. This Court is of the considered view that the present complaint against the petitioner is legally untenable and the cognizance of the said complaint taken by the Magistrate leading to the registration of the case deserves to be interfered with - petition allowed.

Summary

Issues:
Petitioner seeks to quash C.C.No.283 of 2017 alleging wrongful inclusion in complaint under Section 138 of Negotiable Instruments Act.

Analysis:
The prosecution alleges a business agreement between a complainant company and a partnership firm for the supply of minerals. The complainant paid a substantial sum, but faced issues with the supply and subsequently received a dishonored cheque. The complainant initiated legal action under Section 138 of the Negotiable Instruments Act, leading to the present petition.

The petitioner's counsel argues that the business transaction was solely between partners of the corporation, not involving the petitioner. Despite the cheque being from the petitioner's account, it was issued without her knowledge. The complaint fails to include the corporation or its partners as accused, making the petitioner's inclusion unjustified.

The petitioner's counsel further contends that as per Section 138 of the Negotiable Instruments Act, the complaint lacks merit as there was no direct transaction between the petitioner and the complainant. The absence of essential elements renders the complaint legally flawed and subject to quashing.

Conversely, the complainant's counsel asserts that even though the business deal did not directly involve the petitioner, the cheque issued from her account holds her liable unless proven otherwise. Allegations of collusion between the petitioner and her husband to deceive the complainant support the maintenance of the complaint under Section 138.

Upon careful consideration, the court acknowledges the lack of business dealings between the petitioner and the complainant. The cheque in question was issued for the corporation's debt by one of its partners from the petitioner's account, which she claims ignorance of. The court emphasizes the necessity of debt or liability between the drawer and recipient for Section 138 to apply.

The court highlights that the complainant's grievance should be directed towards the partner who issued the cheque, not the petitioner, who merely holds the account. Vicarious liability of all partners in the corporation should have been considered, rather than singling out the petitioner unjustly. Consequently, the court deems the complaint against the petitioner legally unsustainable and quashes the case.

In conclusion, the court allows the Criminal Original Petition, leading to the quashing of C.C.No.283 of 2017. The judgment emphasizes the legal untenability of the complaint against the petitioner and the need for proper inclusion of liable parties in such cases.