2018 (9) TMI 43

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..... The first accused issued a cheque dated 10.08.2010 to discharge entire part of their liability for a sum of Rs. 11,80,000/- bearing No.554837 dated 18.08.2010 in favour of the complainant. The said cheque was presented for collection and it was returned dishonoured with the banker's endorsement 'ACCOUNT No.88 ' OUR ACCOUNT OF G.SORNAVALLY'. It was informed to the complainant. Therefore, on 20.08.2010, the second accused issued two cheques for a sum of Rs. 5,90,000/- each. Both the cheques were presented for collection and the same were also returned for the reason that 'INSUFFICIENT FUNDS'. After causing statutory notice, the complainant filed private complaint for the offence under Section 138 of Negotiable Instrument Act before the ....

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....elonging to the petitioner and the cheque pertains to the account No.88 and it stands in the name of the second accused. The other cheques issued by the second accused belong to her account. Though the loan jointly borrowed by both the accused, the alleged cheque was not signed by the petitioner and as such, no offence under Section 138 of Negotiable Instrument Act can be said to have been committed by the petitioner. The offence under Section 138 of Negotiable Instrument Act reads as follows: "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 discha....

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....8.In this regard, it is relevant to cite paragraph No.13 of the judgment reported in (2009) 14 SCC 683 ' Jugesh Sehgal V. Shamsher Singh Gogi, which read as follows: "In order to constitute an offence under Section 138 of the N.I. Act, this Court, in Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683, noted the following ingredients which are required to be fulfilled: "(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from ....

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.... A.Shah V. Sheth Developers (P) Ltd., and another, wherein, the Apex Court has held as follows: "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 138cannot 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 ch....