Beenamma Job v. Satharth K, Renjith P Job and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 30[TH] DAY OF JUNE 2023 / 9TH ASHADHA, 1945`** ``` CRL.MCNO.8877OF2022 ``` ``` AGAINSTTHEORDER/JUDGMENTINCC3279/2016OFJMFC(SPECIAL COURT)FORTRIALOFNIACTCASES(TEMPORARY) ``` ## **`PETITIONER/S:`** ``` BEENAMMAJOB AGED65YEARS W/O.JOBJOSEPH, POOVATHUMMOOTTILHOUSE,KARUKACHAL - P.O.,KOTTAYAMDISTRICT.,PIN686540 BYADVS. SAJIMATHEW ATHIRAJ.S. ALFIANWAR ``` ## **`RESPONDENT/S:`** ``` 1SATHART.K AGED43YEARS S/O.KHADER, PLASTICCOTTAGE,JEWSSTREET,BROADWAY, - ERNAKULAM,PIN682031 2RENJITHPJOB AGED45YEARS S/O.JOBJOSEPH, POOVATHUMMOOTTILHOUSE,KARUKACHALP.O., - KOTTAYAMDISTRICT.,PIN686540 3STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,PIN682031 BYADVSHIJUVARGHESE SRI.TRRENJITH,SR.PP THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON30.06.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` ``` CRL.MCNO.8877OF2022 ``` ``` 2 ``` ## **ORDER** The instant petition is filed invoking the powers under Section 482 of the Code of Criminal Procedure (“the Code” for the sake of brevity). 2. The petitioner herein is the 2nd accused in C.C. No. 3279/2016 on the files of the Special Judicial Magistrate of First Class (NI Act Cases), Ernakulam. In the aforesaid case, she is accused of having committed offence punishable under Section 138 of the Negotiable Instruments Act. 3. The short facts are as under:- In the complaint lodged by the 1st respondent before the learned Magistrate, it was stated that the petitioner herein is the mother of the 1st accused, and the 3rd accused is the husband of the petitioner herein. It is alleged that in connection with certain transactions, in which the 1st accused had with the defacto complainant, he had purchased articles worth Rs. 2,20,000/- and in the discharge of the same, the 1st accused is alleged to have issued a cheque drawn in an account maintained by him. The cheque was presented for encashment, but the same was dishonored for insufficiency of funds. On the premise that the business is run by accused Nos. 1 to 3, a complaint was lodged, arraying all three of them as accused. 4. Sri. Saji Mathew, the learned counsel appearing for the petitioner, submits that the proceeding against the petitioner herein is a clear abuse of process. Referring to the expression ‘drawer’ under the Negotiable ``` CRL.MCNO.8877OF2022 ``` ``` 3 ``` Instruments Act, it is submitted that only the drawer can be prosecuted for the offense under Section 138 of the Negotiable Instruments Act. In order to substantiate his contention, reliance is placed on the law laid down by the Apex Court in **Jugesh Sehgal v. Shamsher Singh Gogi[1]** and in **Aparna A. Shah v. M/s Sheth Developers Pvt. Ltd and Another[2]** . It is further stated that even if it is taken that the issuance of a cheque was from a joint account, only the person who has drawn the cheque can be validly prosecuted. Reliance is also placed on the judgment rendered by the Delhi High Court in **Gita Berry v. Genesis Educational Foundation[3]** to substantiate the contention that the complaint against a person who has not drawn the cheque cannot be maintained under law. 5. In response, the learned counsel appearing for the respondent submitted that in the complaint, it is specifically stated that the accused are jointly conducting the business in the name of BSE Big Bazar, and it was at the instance of accused Nos. 2 and 3, the 1st accused issued the cheque. 6. I have considered the submissions advanced. 7. To constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; > 1 2009 (14) SCC 683 > 2 AIR 2013 SC 3210 > 3 2008 KHC 6912 ``` CRL.MCNO.8877OF2022 ``` ``` 4 ``` (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 8. It is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offense under Section 138 of the Act. 9. In **Aparna A. Shah v. Sheth Developers (P) Ltd.** , (2013) 8 SCC 71, the Hon’ble Apex Court had occasion to consider identical issues, and after referring to the law laid down by various High Courts, it was observed as under **23.** The learned Single Judge of the Madras High Court in Devendra Pundir v. Rajendra Prasad Maurya [Devendra Pundir v. Rajendra Prasad Maurya, 2008 Cri LJ 777 (Mad)] , following decisions of this Court, has concluded thus: “7. This Court is of the considered view that the above proposition of law laid down by the Hon'ble Apex Court in the decision of Fine Tubes (2007) 5 SCC 103 is squarely applicable ``` CRL.MCNO.8877OF2022 ``` ``` 5 ``` to the facts of the instant case. Even in this case, as already pointed out, the first accused is admittedly the sole proprietor of the concern, namely, ‘Kamakshi Enterprises’, and as such, the question of the second accused to be vicariously held liable for the offence said to have been committed by the first accused under Section 138 of the Negotiable Instruments Act not at all arise.” After saying so, the learned Single Judge, quashed the proceedings initiated against the petitioner therein and permitted the Judicial Magistrate to proceed and expedite the trial in respect of others. **24.** In Gita Berry v. Genesis Educational Foundation [Gita Berry v. Genesis Educational Foundation, (2008) 151 DLT 155] , the petitioner therein was wife and she filed a petition under Section 482 of the Code seeking quashing of the complaint filed under Section 138 of the NI Act. The case of the petitioner therein was that the offence under Section 138 of the Act cannot be said to have been made out against her only on the ground that she was a joint account-holder along with her husband. It was pointed out that she has neither drawn nor issued the cheque in question and, therefore, according to her, the complaint against her was not maintainable. The learned Single Judge of the High Court of Delhi, after noting that the complaint was only under Section 138 of the Act and not under Section 420 IPC and pointing out that nothing was elicited from the complainant to the effect that the petitioner was responsible for the cheque in question, quashed the proceedings insofar as the petitioner therein. **25.** In Bandeep Kaur v. Avneet Singh [(2008) 2 PLR 796] , in a similar situation, the learned Single Judge of the Punjab and Haryana High Court held that in case the drawer of a cheque fails to make the payment on receipt of a notice, then the provisions of Section 138 of the Act could be attracted against him only. The learned Single Judge further held that though the cheque was drawn to a joint bank account which is to be operated by anyone i.e. the petitioner or by her husband, ``` CRL.MCNO.8877OF2022 ``` ``` 6 ``` but the controversial document is the cheque, the liability regarding dishonouring of which can be fastened on the drawer of it. After saying so, learned Single Judge accepted the plea of the petitioner and quashed the proceedings insofar as it relates to her and permitted the complainant to proceed further insofar as against others. **26.** In the light of the principles as discussed in the earlier paragraphs, we fully endorse the view expressed by the learned Judges of the Madras [Devendra Pundir v. Rajendra Prasad Maurya, 2008 Cri LJ 777 (Mad)] , Delhi [Gita Berry v. Genesis Educational Foundation, (2008) 151 DLT 155] and Punjab and Haryana [(2008) 2 PLR 796] High Courts. **27.** In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains the name of the appellant and her husband, the fact remains that her husband alone had put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 10. In view of the law declared above, there cannot be any doubt that only the drawer of the cheque can be prosecuted. In the case on hand, admittedly, the petitioner is not the drawer of the cheque, and she has not signed the same. Even if the parties were maintaining a joint account, unless the petitioner had also drawn the cheque, she could not be prosecuted for the offense under Section 138 of the NI Act. ``` CRL.MCNO.8877OF2022 ``` ``` 7 ``` **==> picture [432 x 33] intentionally omitted <==** In that view of the matter, the petitioner is entitled to succeed **.** All further proceedings pending thereto in C.C. No. 3279 of 2016 on the files of the Special Judicial Magistrate of First Class (NI Act Cases), Ernakulam, insofar as it concerns the petitioner, are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` CRL.MCNO.8877OF2022 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 8877/2022`** ## **`PETITIONER ANNEXURES`** ``` AnnexureASUMMONSDATED13.07.2022INCCNO.3279/2016ISSUED BYTHESPECIALJUDICIALMAGISTRATEOFTHEFIRST CLASSCOURT(NIACTCASES),ERNAKULAMTOTHE PETITIONER ``` ``` AnnexureBCERTIFIEDCOPYOFCOMPLAINTINC.CNO.3279/2016ON THEFILEOFTHESPECIALJUDICIALMAGISTRATEOFTHE FIRSTCLASSCOURTAWLACTCASES),ERNAKULAM. ``` ``` AnnexureCCERTIFIEDCOPYOFTHECHEQUEBEARINGNO.588416 DATED15.09.2010PRODUCEDBYTHE1STRESPONDENT ALONGWITHANNEXUREBCOMPLAINTINTHECOURTBELOW . ``` ``` AnnexureDCOPYOFTHENOTICEDATED10.11.2010ISSUEDBY SHIJUVARGHESE,ADVOCATEONBEHALFOFTHE1ST RESPONDENTTOACCUSED ``` ``` AnnexureECOPYOFTHEREPLYNOTICEDATED25.11.2020ISSUED ONBEHALFOFTHEPETITIONERTOTHECOUNSELFORTHE 1STRESPONDENT,PRODUCEDALONGWITHANNEXUREB COMPLAINT. ```