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2013 (1) TMI 1055

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..... n on the ICICI Bank by Shri Inderjeet, husband of the petitioner in favour of the complainant , Smt. Rukmani, the Respondent no.2 herein in the sum of Rs. 2,12,000/-. 3. The case of the petitioner is that the offence under Section 138 of the Act cannot be said to have been made out against the petitioner only on the ground that she was a joint account holder along with her husband. She has admittedly neither drawn nor issued the cheque in question and therefore the complaint against her was not maintainable. 4. Arguing the present petition, ld. counsel for the petitioner submits that the respondent no.1 has filed the said complaint under Section 138 of the Negotiable Instruments Act, 1881 read with Section 420/34 IPC, 1860, on the all .....

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..... 000/- . That Inderjeet/respondent no.2 herein in order to confirm the deal, paid Rs. 20,000/- on account of earnest money to the husband of the complainant in the presence of the property dealer vide receipt dated 02.08.2008. b) Thereafter, the respondent no. 2 herein told the complainant that for the purpose of payment of Rs. 14,61,000/-, they would obtain loan from the bank and for the said reason , the complainant should sign the sale deed, so that the transaction can be processed smoothly. c) That further the petitioner and respondent no.2 made the payment of Rs. 1,50,000 in cash to the husband of the complainant and another sum of Rs. 2,50000/- , therefore Rs. 3,85,000/- stood paid in cash, now 10, 76, 000/- was the remaining amo .....

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..... to the petitioner and the respondent no.2 through there counsel and accused persons inspite of clearing of the liability, completely digressed from the stand and contended that the Agreement to Sell was only for the sum of Rs. 9,60,000/- which has been cleared of. Hence, the respondent no.1 herein lodged a case of cheating as well as dishonor of cheque u/s 138 of the Negotiable Instruments Act, 1881. 5. Counsel thus submits that even if the allegations leveled by the complainant in the said complaint are considered to be true and correct, yet no explicit role of the petitioner has been disclosed in the entire complaint, in the issuance of the said cheque which was returned dishonored by the bank. Counsel further submits that undoubtedly .....

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..... e by not paying the balance sale consideration amount. Counsel also submits that the petitioner cannot separate herself from her husband as both of them are joint purchasers of the said flat and the cheque in question was issued from the joint bank account of both of them. 7. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them. 8. The respondent no.1/ complainant filed the complaint against the petitioner and respondent no.2 inter alia on the ground that the petitioner and the respondent no.2 , who are husband and wife had agreed to purchase the flat bearing No. D-1/1/5 Front Side, DLF Dilshad Ext.II, Village Brahmpur, Sahibabad, Distt. Gaziabad (U.P.) owned by the respo .....

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..... t the petitioner has been maintaining a joint account along with her husband cannot make her liable for the said quandary. 10. According to Section 138 of the Negotiable Instruments Act, 1881, it refers to the payee or holder in due course of the cheque. It specifies that after the dishonour of the cheque, the drawer of the same could be brought to the wharf for the fault committed by him. For ready reference Section 138 of the Act is enumerated below: 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 out of that account for the discharge, in whole or in part, of any .....

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..... the drawer of the cheque, who has issued the cheque from the joint account maintained by him and his wife, does not specifically bear any implication that the latter is equally responsible even when the cheque was drawn by her husband and therefore, no vicarious liability can be fastened on the holder of a joint account by a mere fact that the dishonoured cheque was issued from the same account by the drawer of such a cheque. The analogy of Section 141 of the Negotiable Instruments Act, 1881 which deals with the offences of the company, cannot be stretched to make the joint holder of a bank account vicariously liable to face the prosecution under Section 138 of the Negotiable Instruments Act, 1881. 12. It is a settled legal position tha .....

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