Sudha Devi vs Anil Kumar

Saurabh Banerjee, J

This Court is proceeding to decide the present petition filed under Section  482  of the  Code  of Criminal  Procedure,  1973  wherein  the petitioner seeks quashing of Criminal Complaint bearing CC NI Act No.26009/2021 entitled “Anil  Kumar  vs.  Tarun  Kumar  &  Anr.” as ‘compliant case’ pending  before  the  Court of learned Metropolitan Magistrate (NI Act), Digital Court-08, Dwarka Courts, New Delhi ‘Trial Court’ as well as the summoning order dated 15.12.20213 passed therein and all subsequent proceedings emanating therefrom insofar as they pertain to the petitioner.

Shorn of unnecessary details, the facts leading present petition is that the respondent filed a complainant case for an offence punishable under Section  138  of  the  Negotiable  Instruments  Act,  1881 ‘NI Act’ against  the  petitioner and  her  son  before  the  learned  Trial  Court  wherein  he  alleged  that they had approached  him with  an  offer  to  sell  their  house  citing  financial  hardship  in August  2020.  Subsequently,  as  per  agreement,  an  Agreement  to  Sell  was  to be  executed  upon  the  respondent  paying  of  Rs.10,00,000/-  to  the  petitioner, for which the respondent  paid  various installments  of  that amount between August 2020 and April 2021. However, despite receipt thereof, the petitioner declined to sell the property and the son of the petitioner issued a cheque bearing no.000018 dated 01.09.2021 drawn on Kotak Mahindra Bank, Najafgarh for Rs.10,00,000/- towards refund of the said amount. The said cheque, upon presentation, was returned unpaid with the endorsement“funds insufficient”. Thereafter, the respondent served a Legal Notice dated 27.09.2021 to the petitioner and her son demanding payment of the aforesaid amount within 15 days from the receipt of the Notice. However, no response was  received  from  the  petitioner.  Being  aggrieved,  the  respondent  filed  the aforesaid  complaint  before  the  learned  Trial  Court.  The  learned  Trial  Court, thereafter, vide order dated 15.12.2021, summoned both the petitioner and her son. It is that summoning order which is under challenge before this Court.

In the aforesaid background, learned counsel for the petitioner submitted  that  the  learned  Trial  Court  has  passed  the  summoning  order  in  a                                     mechanical manner and without appreciating the foundational requirements of Section 138 of the NI Act. Moreover, the petitioner is neither the/ a signatory to  the  cheque  in question nor  has  it  been drawn  from her  account. The petitioner,  thus, cannot be prosecuted for the offence under  Section 138 of the NI  Act.  To buttress his  contentions,  learned  counsel  relied  upon  Alka Khandu Avhad v. Amar Syamprasad Mishra (2021) 4 SCC 675 and Shalu Arora v. Tanu Bathla 2023:PHHC:152038.

Per contra, learned counsel for the respondent submitted that the learned  Trial  Court  has  passed the  summoning  order  qua  the  petitioner only after due consideration of the materials on record and as such, no interference is warranted by this Court.

This Court has  heard the  learned counsel  for  the  parties  and  perused the documents on record as also the judgments cited at the Bar.

The learned Trial Court could have proceeded to pass the summoning order against the petitioner herein for an offence punishable under Section 138 of the NI Act, if the essential ingredients therefor which need to be satisfied, are as under: -

i) The cheque in issue must be drawn by a person from an account maintained by him/ her with a banker; and

ii) The cheque in issue must be towards the payment of any amount, be it in whole or in part, in discharge of any legally enforceable debt or liability; and

iii) The cheque in issue must be returned by the bank unpaid for reasons such as the amount of money  standing to the credit of that account is insufficient to honour the said cheque or that it exceeds the amount arranged to be paid from that account.

The facts herein reveal that, admittedly, neither the cheque in issue has been drawn by the petitioner nor has it been issued from a bank account maintained by her, whether singly or jointly. In fact, it is notable that it is the own case of the respondent that it was the son of the petitioner, who, in discharge of the liability, issued the said cheque. Meaning thereby, the liability, if any, arising from dishonor of the cheque in issue can only be fastened upon the son of the petitioner. Thus, the petitioner has no role to play and  cannot  be  summoned  as  no  complaint  under  Section 138  of  the  NI Act, per se, is maintainable against her. The criminal liability is strictly confined to the‘drawer’of the cheque, which the petitioner herein is not.

In fact, the Hon’ble Supreme Court in Alka Khandu Avhad (supra) under similar facts and circumstances has held as under:

“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 on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt, but  if  such  a person  who  might  have  been  liable  to  pay  the debt  jointly,  cannot  be  prosecuted  unless  the  bank  account is jointly maintained and that he was a signatory to the cheque.”

Ergo, in view of the aforesaid discussion, the present petition is allowed and the Criminal Complaint bearing CC NI Act No.26009/2021 entitled “Anil Kumar vs. Tarun Kumar & Anr.” pending before the learned Trial Court as well as the summoning order dated 15.12.2021 passed therein and  all  subsequent  proceedings  emanating  therefrom  insofar  as  they  pertain to the petitioner are hereby quashed.

Accordingly, the present petition along with pending application, is disposed of in the above terms.