ORDER : 1. Though notice was served to respondent No.2 but, it was refused. 2. Rule returnable forthwith. Mr. Soham Joshi, learned APP waives service of notice of rule for and on behalf of the respondent No.1-State. 3. By way of present application, applicant No.2 herein has prayed for quashing and setting aside the proceedings arising from Criminal Case No. 51616 of 2015 pending before the Court of learned 12th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara dated 28.9.2015 under the provision of Section 138 of Negotiable Instruments Act. 4. The brief facts of the complaint are as under:- 4.1 Respondent No.2-original complainant, Managing Partner of M/s. Priyasha Money Lending Company filed a complaint on 28.9.2015 inter alia contending that the complainant firm had lent Rs.16,00,000/- to the applicant No.1 as the applicant No. 1 was in need of money for the purpose of his business. It is case of the complainant that against the outstanding amount of Rs.6,00,000/-, applicant No.2 had paid the amount through cheque dated 23.8.2014. Further the complainant alleged that Rs.24,96,320 was outstanding towards the amount lent by the complainant. It is the further case of the complainant that towards the remaining payment of Rs.24,96,320/-, applicant No.1 had issued a cheque of Rs.24,96,320/- being Cheque No. 313757 dated 12.6.2015 of H.D.F.C. Bank, Alkapuri Society Branch. The said cheqie was dishonoured on 21.7.2015 with an endorsement of “Account Closed”. The complainant through his firm issued a legal notice dated 12.8.2015 under Section 138 of the Negotiable Instrument Act, 1881. Though, legal notice was issued dated 12.8.2015 to the applicants and applicants was not replied to the said notice. Thereafter, the complainant was constrained to approach the Court of learned 12th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara by filing criminal complaint against the applicants for the reason that the drawing cheque dated 12.6.2015 was issued by the applicant No.1 and the said cheque came to be dishonoured by the concerned Bank dated 21.7.2015 and process came to be issued qua present applicants. Being aggrieved by the issuance of process by the concerned Court, the applicants herein has constrained to approach this Court for further relief has stated above merely on the ground that the application came to be withdrawn qua applicant No.1 vide order dated 6.5.2016 and notice came to be issued qua applicant No.2 and further proceedings came to be stayed qua applicant No.2. 5. Heard Mr. Dhruvik K. Patel, learned advocate for the applicant No.2 and Mr. Soham Joshi, learned APP for the respondent No.1-State. 6. Learned advocate for the applicant No.2 submits that applicant No.2 herein is neither signatory to the said cheque nor the cheque is drawn by him as well as account maintained by him with the banker as required under the provisions of Section 138 of Negotiable Instruments Act. 7. This Court has perused the documents produced on record the cheque in question dated 12.4.2014 which is duly produced at Annexure “B” of the present application which is duly signed by the applicant No.1 i.e. Sandeep N. Parmar. The return memo of cheque is duly produced at Annexure “C” dated 21.7.2015. The certificate issued by the concerned Bank stating that the cheque in question was issued by the applicant No.1 i.e. Sandeep N. Parmar is also produced at Annexure “F” page 23. 8. At this stage, it is apposite to refer to the following position of law:- (a) In the case of Aparna A. Shah Vs. Sheth Developers Pvt. Ltd. reported in (2013) 8 SCC 71 , paragraphs 27 & 28 read thus:- "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 name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-inchief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 28. In addition to the same, a bare reading of the complaint as also the affidavit of examination-inchief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 28. We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case except in case of Section 141 of the N.I. Act be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage." (b) In the case of Alka Khandu Avhad Vs. Amar Syamprasad Mishra and others reported in AIR (2021) SC 1616, paragraphs 6 to 8 read thus:- "6. We have heard learned counsel appearing on behalf of the respective parties at length, considered material on record and also considered the averments and allegations in the complaint. Amar Syamprasad Mishra and others reported in AIR (2021) SC 1616, paragraphs 6 to 8 read thus:- "6. We have heard learned counsel appearing on behalf of the respective parties at length, considered material on record and also considered the averments and allegations in the complaint. It emerges from the record that the dishonoured cheque was issued by original accused No. 1 husband of the appellant. It was drawn from the bank account of original accused No. 1. The dishonoured cheque was signed by original accused No. 1. Therefore, the dishonoured cheque was signed by original accused No. 1 and it was drawn on the bank account of original accused No. 1. The appellant herein original accused No. 2 is neither the signatory to the cheque nor the dishonoured cheque was drawn from her bank account. That the account in question was not a joint account. In the light of the aforesaid facts, it is required to be considered whether the appellant herein original accused No. 2 can be prosecuted for the offence punishable under Section 138 r/w Section 141 of the NI Act? 7. On a fair reading of Section 138 of the NI Act, before a person can be prosecuted, the following conditions are required to be satisfied: (i) that the cheque is drawn by a person and on an account maintained by him with a banker; (ii) for the 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; and (iii) the said cheque 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. 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. 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. 8. Now, so far as the case on behalf of the original complainant that the appellant herein original accused No. 2 can be convicted with the aid of Section 141 of the NI Act is concerned, the aforesaid has no substance. 8.1 Section 141 of the NI Act is relating to the offence by companies and it cannot be made applicable to the individuals. Learned counsel appearing on behalf of the original complainant has submitted that Company means any body corporate and includes, a firm or other association of individuals and therefore in case of a joint liability of two or more persons it will fall within other association of individuals and therefore with the aid of Section 141 of the NI Act, the appellant who is jointly liable to pay the debt, can be prosecuted. The aforesaid cannot be accepted. Two private individuals cannot be said to be other association of individuals. Therefore, there is no question of invoking Section 141 of the NI Act against the appellant, as the liability is the individual liability (may be a joint liabilities), but cannot be said to be the offence committed by a company or by it corporate or firm or other associations of individuals. The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. Therefore, the High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. Therefore, the High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act. The criminal complaint filed against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act, therefore, can be said to be abuse of process of law and therefore the same is required to be quashed and set aside." 9. The facts that emerge for the consideration of the present disputes are that the complaint came to be filed by the complainant before the concerned Court being Criminal Case No. 51616 of 2015 for dishonoured of cheque No. 313757 dated 12.6.2015 of HDFC Bank, Alkapuri Society Branch which was duly signed by the applicant No.1. The said cheque was issued from savings account of applicant No.1. Applicant No.2 is not signatory of the said cheque. Considering the settled position of law and facts of the present case, the cheque in question having been issued from savings account of the applicant No.1 which has been returned with an endorsement that “Account Closed” and applicant No.2 not being signatory to the said cheque, applicant No.2 cannot be held to be liable for the cheque which was issued by the applicant No.1 and which came to be returned with endorsement “Account Closed”. 10. For the forgoing reasons, Criminal Case No. 51616 of 2015 is instituted under the provisions of Section 138 of the Negotiable Instruments Act and the cheque in question have also been drawn by the applicant No.1 in favour of the complainant in his personal capacity is required to continue. The application preferred by the applicant No.2 requires consideration and the applicant No.2 cannot be held to be liable for the cheque which was issued by the applicant No.1 for an amount of 24,96,320/-. 11. For the reasons stated above, the application succeeds. The impugned complaint being Criminal Case. No. 51616 of 2015 pending before the Court of learned 12th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara stands quashed and set aside qua applicant No.2. Proceedings shall continue qua the accused No.1. Rule is made absolute to the aforesaid extent. Direct service is permitted.