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TMI Blog2021 (3) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 226 of the Constitution of India and has refused to quash the complaint filed against the appellant for the offences punishable under Section 138 r/w Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act'), the original accused No. 2 has preferred the present appeal. 2. That respondent No. 1 herein has filed a criminal complaint against the appellant and her husband for the offences punishable under Section 138 r/w Section 141 of the NI Act in the Court of the learned Metropolitan Magistrate, 43rd Court at Borivali, Mumbai, which has been numbered as C.C. No. 2802/SS/2016. That respondent No. 1 - original complaint (hereinafter referred to as 'the original complainant') is a practicing advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to issue process against both the accused for the offence punishable under Sections 138 r/w Section 141 of the NI Act. 2.1 That, thereafter, the appellant herein - original accused No. 2, wife of the original accused No. 1 filed Criminal Writ Petition No. 2595 of 2019 in the High Court to quash the criminal complaint filed against her mainly on the ground that the appellant was neither a signatory to the cheque dishonoured nor there was a joint bank account. 2.2 It was further submitted that the appellant cannot be prosecuted for the offence punishable under Sections 138 r/w Section 141 of the NI Act. 2.3 However, it was the case on behalf of the original complainant that it was the joint liability of both the accused Nos. 1 and 2 to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the debt towards the professional bill was the joint liability of both the accused as the complainant represented both the accused and, therefore, as rightly observed and held by the High Court, Section 141 of the NI Act shall be applicable. 4.2 It is submitted that when the Trial Court issued the summons against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act after having come to the conclusion that a prima facie case has been made out, the High Court has rightly refused to quash the criminal complaint. 4.3 It is further submitted that as the cheque was issued towards discharge of legal liability of both the accused and thereafter when her husband issued the cheque, the High Court has rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any debt or other liability; and iii) the said cheque 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. Therefore, a person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a company or by it corporate or firm or other associations of individuals. The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. Therefore, the High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act. The criminal complaint filed against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act, therefore, can be said to be abuse of process of law and therefore the same is required to be quashed and set aside. 8. In view of the above and for the reasons stated above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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