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TMI Blog2023 (12) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and it has been issued by her brother from his bank account wherein the petitioner is not an account holder. As such, in view of the provisions of Section 138 of the Act, the petitioner, under the present circumstances, cannot be held liable for something not concerning her. Further, though the petitioner, along with her brother, is a Director, shareholder and authorised representative of an entity, namely, A.R. Restaurant India Pvt. Ltd., however, the respondent has not filed any complaint against the said entity. In view thereof, the petitioner has hardly any role to play qua the cheque involved in the present dispute. Thus, the petitioner ought not to have been made an accused in the complaint by the respondent. More so, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 27.10.2020 upon the petitioner and her brother. However, the petitioner and her brother yet again failed to make the payment within the stipulated period. Hence, the petitioner proceeded with filing of the present complaint. 4. Learned counsel for the petitioner submits that the petitioner has been frivolously arrayed as an accused in the complaint and that the cheque from which the complaint case emanates, was neither drawn by the petitioner nor was issued from her bank account nor was it bearing her signatures. Reliance in this regard is placed upon Aparna A. Shah vs. Sheth Developers Private Limited (2013) 8 SCC 71; Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683, wherein it was held that under Section 138 of the Act, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the factual matrix, the learned counsel for the respondent submits that the petitioner plays an inextricable role in the present complaint and the extent of her involvement can only be ascertained after trial. Therefore, quashing the impugned complaint would impair the trial qua the brother of the petitioner i.e., accused no.1. 7. This Court has heard the learned counsel(s) for the petitioner and the respondent and perused the documents on record as also the relevant judgments relied upon. 8. In the opinion of this Court, the primary issue for consideration is whether the petitioner herein would come within the ambit of Section 138 of the Act and be impleaded as an accused in the complaint before the learned MM. For a better appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque fails to make the 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, debt or other liability means a legally enforceable debt or other liability. 9. As per Section 138 of the Act, if the drawer of the cheque fails to make the payment on receipt of the legal notice, he is liable to be prosecuted under Section 138 of the Act. The drawer‟ of a cheque has been defined under Section 7 of the Act, which reads as under:- 7. Drawer , drawee . The maker of a bill of exchange or cheque is called the drawer , the person thereby directed to pay is calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accused. 10. 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, a person other than a person who has drawn the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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