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Urmila Kumari V/S Rukmani Devi and Others.

    CRL.M.C. 2741/2011 & Crl.M.A. No. 9780/2011

    Decided On, 09 January 2013

    At, High Court of Delhi

    By, THE HONORABLE JUSTICE: KAILASH GAMBHIR

    For Petitioner: Mr. Deepak Tyagi, Advocate And For Respondents: Mr. Anupam Sharma for R-1 and Mr. Navin Sharma for State



Judgment Text


1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (Crl. PC) filed by the petitioner seeking quashing of the Complaint Case No. 150/09 titled as Smt. Rukmani Devi V. Inderjeet & Anr. under Section 138 of the Negotiable Instrument Act, 1881 (Act). The complaint sterns from a dishonored cheque dated 1.12.2008 drawn 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/-.

2. 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.

3. Arguing the present petition, Id. 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 allegations that the present petitioner and the respondent no. 2 had agreed to purchase the flat of the complainant/ respondent no. 1 for a total sale consideration amount of Rs. 14,61,000/- and out of the said sale consideration amount the petitioner and the respondent n

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o. 2, had issued a cheque for an amount i.e. Rs. 2,12,000/- in favour of the respondent no. 1 herein vide cheque no. 610769 drawn on ICICI bank dated 1.12,2008. Counsel submits that after its presentation by the complainant to the bank, the same was returned dishonoured by the bank and based on the same, the said complaint was filed by the complainant/ respondent no. 1 Counsel further submits that the petitioner is not a signatory to the said cheque and therefore, no case against the petitioner can be made out under Section 138 of the Negotiable Instruments Act, 1881. To enunciate his argument further, counsel brought the attention of this court to the allegations leveled against the petitioner as well as the respondent no. 2 in complaint case no. 150/09 as detailed in paragraph no. 2 of the petition, which are given below:

a) That as per the complaint filed by the Respondent No. 1 / Complainant, petitioner and the respondent no. 2 agreed to purchase the flat from Smt. Rukmani, respondent no. 1 herein bearing flat no. D-1/1/5, D.L.F., Dilshad Extension, Village Brahmpuri @ Bhopura, Shahibabad, Distt. Ghaziabad (U.P.) on 02.08.2000 through M/S. Pasha Properties situated at Dilshad Extension-II for a sum of Rs. 14, 61,000/-. 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 amount which had to be cleared by the petitioner and the respondent no. 2 herein. That on 02.12.2008, the complainant reached along with her husband at the office of the Property dealer, M/S. Pasha Properties and there Mr. Inderjeet/ the respondent no. 2 told the complainant and her husband that the Bank officials are giving the loan draft only for Rs. 8, 64,000/- in place of Rs. 10,76,000/-, therefore for the remaining amount of Rs. 2,12,000/-, they would issue the cheque in the name of the complainant and she could deposit the same in the bank in the last week of December 2008, as they had certain personal reasons due to which they could not afford the encashment of the cheque before last week of December.

d) Inderjeet issued the cheque dated 1.12.2008 to the complainant. Subsequently on 03.12.08, the draft of Rs. 8, 64,000/- was also handed over to the husband of the complainant Further due to some personal discrepancies, Inderjeet requested the complainant and her husband through Mr. Javed Pasha, the property dealer to deposit the cheque of Rs. 2,12,000 in the bank only after 15th of February as there were no substantial funds available in the account. The complainant therefore deposited the said cheque on 16.02.2009 in her bank i.e. Bank of Baroda, mandolin, Delhi and the complainant and her husband were shocked to realize that the cheque has been dishonoured vide memo dated 19.02.2009.

e) That on 09.03.2009 the complainant sent a legal demand notice of Rs. 2,12,000/- 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.

4. 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 the petitioner is a joint account holder with her husband/respondent no. 2 in ICICI Bank, and for the purchase of the said flat, the cheque was issued by respondent no. 2 from their joint account. Counsel thus submits that a mere fact that the petitioner happens to hold a joint account with her husband will not make her vicariously liable in respect of the alleged act in terms of Section 138 of the Negotiable Instruments Act, 1881. Based on the above submissions, counsel for the petitioner submits that the learned trial court has wrongly summoned the petitioner and has thereafter issued notice against the petitioner in terms of Section 251 Cr.P.C

5. Opposing the present petition, counsel for the respondent no. 1 submits that it is the petitioner and the respondent no. 2 who had jointly purchased the said fiat from the respondent no. 1 and therefore, the petitioner cannot claim that she was not involved in the issuance of the said dishonored cheque in question. Counsel also submits that as per the admitted case of the petitioner, she was having a joint account along with her husband and once the cheque was issued from the joint account, the petitioner should be held equally liable for the said dishonored cheque in terms of Section 138 of the Negotiable Instruments Act, 1881. Counsel also submits that the complaint filed by the respondent no. 1 contains all the necessary averments attributing specific role of the petitioner in issuing the said cheque and in committing the offence 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.

6. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them.

7. 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 Brahmpuri, Sahibabad, Distt. Ghaziabad (U.P.) owned by the respondent no. 1 for a total sale consideration amount of Rs. 14,61,000/ - and out of the total sale consideration amount, the petitioner and the respondent no. 2 had made certain cash payments in installments and an amount of Rs. 2.12 lacs was paid by them through a cheque bearing no. 610769 dated 1.12.2008 drawn on ICICI Bank Limited, which after its presentation by the respondent no. 1 to the bank was returned dishonored with the remarks Insufficient Funds'. It is the case of the complainant that the legal notice dated 9.3.2009 was sent by her to the accused persons to make the payment of the amount in question and in reply they took a deceitful stand of having paid the entire sale consideration amount towards the purchase of the said flat Based on these averments, the complainant has alleged that the petitioner and the respondent no. 1 have played fraud upon her by not making the payment of balance sale consideration amount of Rs. 2.12 lacs. The complaint case was filed by the respondent no. 1 under Section 138 of Negotiable Instruments Act, 1881 read with Section 420/34 IPC.

8. It is an admitted case between the parties that the trial court has not framed any charges under Section 420/34 IPC and notice has been issued against the petitioner and respondent no. 2 for committing an offence under Section 138 of the Negotiable Instruments Act, 1881. It is also not in dispute between the parties that the petitioner is not the drawer of the cheque which was dishonoured. A mere fact that the petitioner has been maintaining a joint account along with her husband cannot make her liable for the said quandary.

9. 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 debt or other liability, 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 by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless:

(a) the cheque has been presented to the bank within a period of six months from me date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in the due course of the cheque, as me case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to me drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such 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.

10. From a bare reading of Section 138 of the Negotiable Instruments Act, 1881, it transpires that the liability of 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.

11. It is a settled legal position that penal provisions should be construed strictly and not in a routine or a casual manner. It is manifest from the expression of the words used in Section 138 of the Negotiable Instruments Act that 'such person' shall be deemed to have committed an offence' refers to a person who has drawn the cheque, is returned unpaid on account of the conditions mentioned under Section 138 of the Negotiable Instruments Act, has been liable but not any other, except the contingencies mentioned under Section 141 of the Act (See. Smt. Bandeep Kaur Vs. S. Avneet Singh : (2008) 2 PLR 796)

12. In the light of the above discussion, I find merit in the submissions made by the counsel for the petitioner that no case has been made out in the said complaint case filed by the respondent no. 1 against the petitioner who is merely a joint account holder in the bank with her husband and she cannot be held liable for the cheque in question which remained unpaid due to insufficiency of funds in the said count

13. The present petition filed by the petitioner is accordingly allowed. Consequently, the complaint case no. 150/ 09 filed by the respondent no. 1 qua the petitioner is quashed. This order, however, will not affect the trial of the said complaint case as against the respondent no. 2. With the above directions, the petition stands disposed of. It is ordered accordingly
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