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2022 (2) TMI 354 - HC - Indian LawsDishonor of Cheque - owner of the cheque - joint owner of the cheque - joint liability or not - main contention of the petitioner/accused is that the cheque in question is not belonging to her and the same belongs to her husband Saravanavel - HELD THAT - In the case on hand, it is evident from the records that the disputed cheque is not belonging to the petitioner and the same was not drawn by the petitioner on an account maintained by her. It is not the case of the complainant that the petitioner and her husband were jointly liable or that they were holding joint account in the Indian Overseas Bank. As per the legal dictum of the Honourable Supreme Court in ALKA KHANDU AVHAD VERSUS AMAR SYAMPRASAD MISHRA ANR. 2021 (3) TMI 381 - SUPREME COURT , even assuming that they were holding of the joint account, the Hon'ble Supreme Court has specifically held that Section 138 of the Negotiable Instruments Act does not speak about the joint liability and even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque cannot be prosecuted for the offence under Section 138 of the Negotiable Instruments Act. Moreover, as rightly contended by the learned Counsel for the petitioner, the respondent in his complaint has not averred that the petitioner had committed an offence of cheating under Section 420 I.P.C., and admittedly, the learned Magistrate has taken cognizance of the case only for the offence under Section 138 r/w 142 of the Negotiable Instruments Act. Since the cheque in question was not drawn by the petitioner on an account maintained by her, the question of considering the contention of the respondent that the petitioner had purposely and wantonly put a different signature in the cheque and thereby cheated the respondent does not arise at all. It is pertinent to note that even after coming to know that the disputed cheque was not drawn in the bank account maintained by the petitioner, the respondent in his complaint has raised allegations against the petitioner as if the cheque was belonging to her and she had purposely put a different signature in the disputed cheque - this Court is of the view that the very complaint lodged by the respondent for the offence under Section 138 of the Negotiable Instruments Act against the petitioner can only be considered as an abuse of process of law and the same is liable to be quashed. Petition allowed.
Issues:
1. Quashing of criminal proceedings under Section 482 Cr.P.C. in a case involving a complaint under Section 138 r/w 142 of the Negotiable Instruments Act. Analysis: The petitioner filed a Criminal Original Petition seeking to quash the proceedings in C.C. No. 135 of 2018, which was a complaint under Section 138 r/w 142 of the Negotiable Instruments Act. The respondent alleged that the petitioner borrowed money and issued a cheque as security, which was later dishonored. The petitioner contended that the cheque belonged to her husband and denied any involvement. The respondent argued that the issue of signature mismatch and cheating should be decided at trial, citing relevant legal precedents. The petitioner claimed that the cheque did not belong to her and that the respondent had stolen it, leading to the dispute. The respondent maintained that the petitioner's intent to cheat could only be determined during trial, not at the quashing stage. The court referred to a Supreme Court judgment emphasizing that only the drawer of the cheque could be prosecuted under Section 138 of the Negotiable Instruments Act, highlighting the need for the cheque to be drawn on an account maintained by the signatory for liability. The court analyzed the facts and legal principles, concluding that the complaint against the petitioner was an abuse of process of law. It noted discrepancies in the respondent's allegations and the lack of specific denial in response to the petitioner's claims regarding the ownership of the cheque. Consequently, the court allowed the Criminal Original Petition, quashing the proceedings against the petitioner in C.C. No. 135 of 2018.
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