Sreekala W/o A.K.Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939** ## **Crl.MC.No. 2519 of 2013 ()** **---------------------------** ## **PETITIONER(S)/PETITIONER/2ND ACCUSED:** **------------------------------------** **SREEKALA W/O.A.K.RAJAN, RAJA SREE, T.C.20/2639, KARAMANA, THIRUVANANTHAPUAM.** ## **BY ADV. SRI.M.R.SASITH PANICKER** ## **RESPONDENT(S)/RESPONDENTS/STATE:** **--------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. SENIL A.K.RAJAN** ## **ASHISHAM, SURYA NAGAR, VLANGAMURI, NEYYATTINKARA.** **R2 BY ADV. SRI.K.A.SREEJITH R2 BY ADV. SRI.SUSHANTH.J. R2 BY ADV. SRI.AJI V.DEV R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALETTY** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 2519 of 2013 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------ANNEXURE A1TRUE COPY OF THE LEGAL NOTICE ISSUED BY 2ND RESPONDENT TO THE PETITIONER'S HUSBAND. ANNEXURE A1APOSTAL RECEIPT OF LEGAL NOTICE ISSUED BY THE 2ND RESPONDENT. ANNEXURE A2CERTIFIED COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT AGAINST THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA. ANNEXURE A3TRUE COPY OF CHEQUE OF THE PETITIONER'S HUSBAND. ANNEXURE A4TRUE COPY OF PASS BOOK OF THE PETITIONER'S HUSBAND.** **RESPONDENT(S)' EXHIBITS: NIL -----------------------** ## **//TRUE COPY//** ## **PA TO JUDGE** ## **sab** **ALEXANDER THOMAS, J. ------------------------------Crl. M.C No. 2519 of 2013 ---------------------------------------------Dated this the 7[th] day of June, 2017** ## **ORDER** The petitioner is accused No.2 in C.C No. 381/12 on the file of the Judicial First Class Magistrate Court-I, Neyyattinkara, instituted on the basis of the complaint preferred by the 2[nd] respondent herein. Annexure A2 is the copy of the impugned complaint in that regard. Accused No.1 in that complaint is the husband of the petitioner. The petitioner seeks to quash the impugned Annexure A2 complaint in C.C No. 381/12 to the extent the petitioner has been arrayed as accused No.2 therein. The main contention raised by the petitioner is that even going by Annexure A3 cheque produced along with the complaint, the petitioner is not a signatory to the said cheque and further that the cheque has not been issued from any bank account maintained by the petitioner and so the petitioner is not a drawer of the said cheque and hence the liability under Section 138 of the Negotiable Instruments Act, 1881 is not factually attracted against the petitioner. 2. Heard Sri.M.R Sasith Panicker, the learned counsel appearing for the petitioner (A2), Sri.Aji V Dev, the learned counsel appearing for R2 (Complainant) and Sri. Saigi Jacob Paletty, the learned Public Prosecutor appearing for R1 State. **Crl. M.C No. 2519 of 2013** **2** 3. The main contention raised by the petitioner is to be noted that the accused No.1 in this case is the husband of the petitioner has been arrayed as accused No.2 in the impugned Annexure A2 complaint which has led to the institution of C.C No. 381/12, before the trial court concerned. It is a case of the petitioner that though there are allegations in Annexure A2 complaint that the transactions between the petitioner (A2) and the complainant, there is only a bland averment that the accused came to the residence of the complainant and had issued the said cheque in question. Annexure A3 is the copy of the cheque that has been produced along with the original complaint which disputed issue that there is only one signatory and that the petitioner is not signatory to the said dishonoured cheque. Further that the cheque is not issued from an account maintained by the petitioner and that the petitioner is not a drawer of the dishonoured cheque in question, no offence under Section 138 of the Negotiable Instruments Act is attracted. On a perusal of Annexure A2 complaint it is seen that there are no averments therein that both the accused A1 and A2 have signed the dishonoured cheque in question. There are no averments in the said complaint that the said dishonoured cheque in question has **Crl. M.C No. 2519 of 2013** **3** been issued from a joint account maintained by both the accused. Thus there are no clear and cogent averments in the complaint that the petitioner is a drawer of the said cheque as conceived in Section 138 of the Negotiable Instruments Act. There are also no averments in the complaint that the cheque has been issued from an account relatable to a corporate body like company or partnership firm etc as envisaged in Section 141 of the Negotiable Instruments Act so as to attract the vicarious liability envisaged therein. 4. This Court in the judgment in **Devi vs Haridas [2004(3)KLT 355]** has held that a person who has not signed the cheque even if he/she is a joint holder of the account in that regard, cannot be made culpably liable under Section 138 of the Negotiable Instruments Act and that it is evident from a plain reading of Section 138 of the NI Act that in order to make a person liable for the said offence, the cheque necessarily have been drawn by the accused on account maintained by him and that he becomes liable only if he is a drawer of the cheque and that it has also be held therein that the mere fact that the account can be operated jointly by both the accused cannot by any stretch of imagination invite culpable liability under Section 138 of the NI Act against the **Crl. M.C No. 2519 of 2013 4** petitioner who is not a drawer of the cheque and is only a joint account holder. The legal position in that regard has also be so affirmed by the Apex Court in the judgment in **Aparna A. Shah vs. Sheth Developers Pvt Ltd. [2013 (8) SCC 71]** that in case of an issuance of cheque from joint accounts, the joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder and that the exception in that regard is in Section 141 of the NI Act which would have no application in the case on hand (See para 28 of the Aparna A. Shah vs. Sheth Developers Pvt Ltd. [2013 (8) SCC 71]). However this Court is now confronted with a difficulty in as mush as there are no averments in the complaint as to which among the two accused have signed Annexure A3 cheque. Even from a perusal of Annexure A3 cheque, it is not possible for this Court to discern as to who among the accused had actually signed the said cheque as it contains only one signature. Though there are averments in the Crl.M.C that the said cheque does not pertain to the bank account maintained by the Petitioner (A2), this Court cannot reach any definite conclusion that A2 has not signed the said cheque and that it is signed only by a person other than A2. So it is not **Crl. M.C No. 2519 of 2013** **5** possible for this Court to determine the factual issue as to whether or not the petitioner (A2) has signed the said or not and also as to whether the said cheque is issued from a bank account mentioned by the petitioner. Those are all matters which would require factual evidence at least at the stage of Section 200 and Section 202 of the Cr.P.C. However, one thing is clear that even going by Annexure A3 dishonoured cheque, the same has been signed only by one person and in the absence of any averment that the cheque has been issued from an account maintained by a corporate body as envisaged under Section 149 of the NI Act, cognizance could have been taken only as against one person as accused and not as against two persons. Therefore, this Court is of the definite view that the very action of the learned Magistrate in taking cognizance of the offence against both the two accused in such a complaint is illegal and improper. 5. In that view of the matter, the impugned decision of the learned Magistrate in having taken cognizance of the offence as against both the accused in this case will stand quashed. The complaint will stand remitted to the trial court for consideration afresh from the stage of Sections 200 and Section 202 of the Cr.P.C. The trial court will conduct a **Crl. M.C No. 2519 of 2013** **6** proper enquiry by virtue of enabling powers conferred under Sections 200 and 202 Cr.P.C to call for the evidence/sworn statement of the complainant and to summon the requisite documents including statement of accounts, account opening form etc from the bank and from whose account the above said cheque has been drawn and ascertain as to whether it is a single account or joint account etc and as to whether the petitioner or the other accused are account holders of that account etc. The trial court would be also at liberty to summon any officials from the bank concerned if more light is to be drawn into those details. Resort to the enquiry under Section 202 of Cr.P.C should be done by the trial court in an effective and proper manner, so as to arrive at a proper decision as to whether or not cognizance is to be taken as against the petitioner herein. At that stage, the complainant could certainly participate in that process but the accused will not have any role as it is at the stage of pre cognizance stage. If after due consideration of all relevant materials, the trial court is convinced that there are no sufficient grounds for proceeding against the petitioner herein, he will be at liberty to refuse to take cognizance as envisaged under Section 202 of the Cr.P.C. If the trial court is convinced that cognizance is **Crl. M.C No. 2519 of 2013** **7** to be taken against any one of the accused, then the learned Magistrate shall take resort to the requisite provisions contained in Section 204 of the Cr.P.C. While considering the crucial issue as to whether or not cognizance is to be taken in this case as against the petitioner (A2), the legal principles laid down by this Court and by the Apex Court in the aforecited judgments shall be carefully taken into consideration by the trial court. The process in that regard may be finalized without much delay or at any rate within a period of 2-3 months from the date of production of a certified copy of this judgment. The petitioner will produce a certified copy of this judgment before the trial court for information and necessary action. With these observations and directions, this Crl.M.C will stand finally disposed of. SD/- sab **ALEXANDER THOMAS, JUDGE**