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$-11 & 12 HIGH COURT OF DELHI
CRL.M.C. 2054/2017 & Crl. M. A. 8420/2017
ANJU SAXENA Petitioner
Through: Ms. Mansi Gupta and Ms. Rachna Saxena, Advocates.
$-11 & 12 HIGH COURT OF DELHI
CRL.M.C. 2054/2017 & Crl. M. A. 8420/2017
ANJU SAXENA Petitioner
Through: Ms. Mansi Gupta and Ms. Rachna Saxena, Advocates.
VERSUS
SARVAMDIAMOND INTERNATIONAL Respondent
Through; Mr. Nishchal Joshi, Advocate
Through; Mr. Nishchal Joshi, Advocate
CRL.M.C. 2055/2017 & Crl. M. A. 8424/2017
ANJU SAXENA Petitioner
Through: Ms. Mansi Gupta and Ms. Rachna Saxena, Advocates.
ANJU SAXENA Petitioner
Through: Ms. Mansi Gupta and Ms. Rachna Saxena, Advocates.
VERSUS
MONICCA JAIN Respondent
Through: Mr. Nishchal Joshi, Advocate
Through: Mr. Nishchal Joshi, Advocate
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
14.09.2018 No reply has been filed by respondents despite last opportunity having been granted to them. Opportunity ofrespondents to file reply is closed.
Arguments heard and material placed on record has been perused.
A perusal of the complaints filed by the respondents under
Section 138 of the Negotiable Instruments Act, 1881 (the Act, for
2018:DHC:8266 short) against the petitioner and her husband, namely, Vishal Saxena makes it clear that cheques detailed therein were issued by Vishal
Saxena. As per the complaint, the cheques were returned dishonoured on presentation with the remarks 'funds insufficient'. Despite notice, amount was not paid. Hence the complaint. Vishal Saxena has been arrayed as accused no. 1while the petitioner was arrayed as accused no. 2. The cheques have been issued by Vishal Saxena from his account inasmuch as bear his signatures. Admittedly, the petitioner is not the drawer ofthe cheques.
In Apama A. Shah vs. Sheth Developers Pvt. Ltd. and Others, MANU/SC/0598/2013 in the similar facts. Supreme Court has held that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. Not only this, it has been held that in case of issuance ofcheque from joint accounts, ajoint account holder cannot be prosecuted unless cheque has been signed by each and every person who is joint account holder. It is not the case that the petitioner was joint account holder with her husband Vishal Saxena.
In Gita Berry vs. Genesis Educational Foundation, 151 (2008)
DLT 155, petitioner was having ajoint account with her husband Shri
Rajesh Berry. The cheque was signed by Shri Rajesh Berry and was returned dishonoured. Complaint under Section 138 of the Act was filed. In the complaint under Section 138 ofthe Act against Rajesh
Berry his wife Gita Berry was also impleaded as accused being joint account holder. Learned Single Judge ofthis Court held that offence under Section 138 ofthe Act was not attracted against petitioner Gita
Berry as the cheque was not signed by her.
Thus, I am of the view that petitioner, not being drawer of the cheques, cannot be said to have committed offence under Section 138 of the Act
For the foregoing reasons. Complaint Case no. 476002/2016 titled M/s Sarvam DiamondInternational vs. Vishal Saxena& Others and Complaint Case no. 476008/2016 titled Monicca Jain vs. Vishal
Saxena &Others are quashed qua the petitioner (accused no. 2) only.
Dasti.
A.K.
SEPTEMBER 14,2018 sr
14.09.2018 No reply has been filed by respondents despite last opportunity having been granted to them. Opportunity ofrespondents to file reply is closed.
Arguments heard and material placed on record has been perused.
A perusal of the complaints filed by the respondents under
Section 138 of the Negotiable Instruments Act, 1881 (the Act, for
2018:DHC:8266 short) against the petitioner and her husband, namely, Vishal Saxena makes it clear that cheques detailed therein were issued by Vishal
Saxena. As per the complaint, the cheques were returned dishonoured on presentation with the remarks 'funds insufficient'. Despite notice, amount was not paid. Hence the complaint. Vishal Saxena has been arrayed as accused no. 1while the petitioner was arrayed as accused no. 2. The cheques have been issued by Vishal Saxena from his account inasmuch as bear his signatures. Admittedly, the petitioner is not the drawer ofthe cheques.
In Apama A. Shah vs. Sheth Developers Pvt. Ltd. and Others, MANU/SC/0598/2013 in the similar facts. Supreme Court has held that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. Not only this, it has been held that in case of issuance ofcheque from joint accounts, ajoint account holder cannot be prosecuted unless cheque has been signed by each and every person who is joint account holder. It is not the case that the petitioner was joint account holder with her husband Vishal Saxena.
In Gita Berry vs. Genesis Educational Foundation, 151 (2008)
DLT 155, petitioner was having ajoint account with her husband Shri
Rajesh Berry. The cheque was signed by Shri Rajesh Berry and was returned dishonoured. Complaint under Section 138 of the Act was filed. In the complaint under Section 138 ofthe Act against Rajesh
Berry his wife Gita Berry was also impleaded as accused being joint account holder. Learned Single Judge ofthis Court held that offence under Section 138 ofthe Act was not attracted against petitioner Gita
Berry as the cheque was not signed by her.
Thus, I am of the view that petitioner, not being drawer of the cheques, cannot be said to have committed offence under Section 138 of the Act
For the foregoing reasons. Complaint Case no. 476002/2016 titled M/s Sarvam DiamondInternational vs. Vishal Saxena& Others and Complaint Case no. 476008/2016 titled Monicca Jain vs. Vishal
Saxena &Others are quashed qua the petitioner (accused no. 2) only.
Dasti.
A.K.
SEPTEMBER 14,2018 sr
JUDGMENT