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2016 DIGILAW 528 (PNJ)

Prabha Goyal v. Arun Kumar

2016-02-09

JASPAL SINGH

body2016
JUDGMENT Mr. Jaspal Singh, J.: (Oral) - By virtue of this petition preferred under Section 482 Cr.P.C., Prabha Goyal has sought quashing of Criminal Complaint No. 34064 of 2013 dated September 27, 2013 (Annexure P-1) filed under Section 138 read with Section 142 of Negotiable Instruments Act, 1881 (for short ‘Act’) as well as order dated September 28, 2013 (Annexure P-2) whereby she has been summoned to face trial under Sections 138 and 142 of the Act and all subsequent proceedings arising therefrom. 2. Brief facts giving rise to the instant lis are that late husband of the petitioner approached the respondent-complainant in the month of September 2012 for financial assistance to the tune of Rs.25,00,000/-. The respondent-complainant is alleged to have advanced a friendly loan of Rs.25,00,000/- to the husband of petitioner on September 21, 2012 and executed a promissory note and receipt; besides an undertaking/affidavit of the same date. It has further been alleged that petitioner and her husband also handed over a post dated cheque bearing No. 415007 dated April 20, 2013 for an amount of Rs.25,00,000/- drawn on State Bank of Patiala, Sector 26, Grain Market, Chandigarh to the respondent-complainant. It has further been alleged that when respondent-complainant approached the petitioner and her husband in the month of April 2013 for re-payment of loan amount, they requested him to present the abovesaid cheque which on presentation was dishonoured with remarks “funds insufficient” vide memo dated July 18, 2013. Thereafter, notice under Section 138 of the Act was served upon the husband of the petitioner but it was not responded and ultimately a complaint was filed. 3. The contention of learned counsel for the petitioner is that petitioner has been dragged in the complaint filed under Section 138 of the Act by respondent being the wife of signatory of the cheque from the joint account. It is pretty settled that in case the drawer of the cheque fails to make the payment on receipt of notice then the provision of Section 138 of the Act could be attracted against him only. Even though the cheque was drawn to a joint bank account being operated by the petitioner and her husband but since the controversial document is the cheque, the liability regarding its dishonour can be fastened only on the drawer of it. Even though the cheque was drawn to a joint bank account being operated by the petitioner and her husband but since the controversial document is the cheque, the liability regarding its dishonour can be fastened only on the drawer of it. To buttress this contention, learned counsel for the petitioner has relied upon the pronouncements of this Court in the case of Smt. Bandeep Kaur v. S. Avneet Singh, [2008(1) Law Herald (P&H) 511] : 2008 (2) RCR (Criminal) 66 and Jugesh Sehgal v. Shamsher Singh Gogi, [2009(5) Law Herald (SC) 3096 : 2009(3) Law Herald (P&H) 2485 (SC)] : 2009 (3) RCR (Criminal) 712 as well as of the Apex Court captioned as Mrs. Aparna A. Shah v. M/s Sheth Developers Pvt. Ltd. and another, [2013(4) Law Herald (SC) 2947] : 2013 (3) RCR (Criminal) 686. 4. On the other hand, learned counsel for the respondent has controverted the afore-said contention submitting that proceedings under Section 138 of the Act are pending before learned trial Court which are being faced by the petitioner and the petitioner can raise all the pleas which have been taken now before learned trial Court during the course of evidence or at the time of arguments. The above-mentioned judgments which are being relied upon by the petitioner are not applicable to the facts and circumstances of the case in hand at this stage. Accordingly, he prayed for dismissal of instant petition. 5. This Court has given an anxious thought to the submissions made by learned counsel for the parties and has scanned the complaint as well as impugned order. 6. Undoubtedly, petitioner is the wife of Subhash Chand Goyal who is the alleged signatory of the cheque in question which is the basis for launching the prosecution under Section 138 of the Act. There is nothing on the record to suggest that petitioner was also under some legal debt recoverable by respondent-complainant. Similarly, the mere fact that she is a joint bank account holder with her husband does not ipso facto mean that she is also liable for the consequences of dishonoring of cheque issued by her husband. The controversial document is the cheque and the liability regarding its dishonour can be fastened only on the drawer of it i.e. signatory of the cheque. There is also nothing on record to suggest that petitioner is actively participates in the business of her husband. The controversial document is the cheque and the liability regarding its dishonour can be fastened only on the drawer of it i.e. signatory of the cheque. There is also nothing on record to suggest that petitioner is actively participates in the business of her husband. It can be safely be concluded that she cannot be fastened with any liability simply on the ground that she was a joint bank account holder along-with her husband. She has neither drawn nor issued cheque in question and therefore, complaint against her is/was not maintainable. The lodging of complaint and the passing of impugned summoning order are nothing but an abuse of process of law as well as Court. 7. In the light of what has been discussed above, instant petition is allowed whereby, impugned complaint (Annexure P-1) i.e. complainant No. 34064 of 2013 dated September 27, 2013 and summoning order dated September 28, 2013 (Annexure P-2) as well as all subsequent proceedings arising therefrom are quashed qua petitioner.