
ALKA
KHANDU AVHAD
VERSUS
AMAR SYAMPRASAD MISHRA & ANR.
Criminal
Appeal No. 258 of 2021, Decided on 08.03.2021.
Judges:Dr. Dhananjaya Y Chandrachud, M.R.
Shah, JJ.
Facts:In
this case, the original complainant (respondent) is a practising advocate, he
raised a professional bill for the legal work done by him to represent the
husband and wife (appellant). The cheque issued by the husband got dishonoured
due to insufficiency of funds and the complainant served legal notice to them.
Thereafter, the complainant filed a complaint against husband and wife for the
offence punishable under Section 138 of the NI Act. The wife approached the
High Court to quash the criminal complaint against her mainly on the ground
that she was neither a signatory to the dishonoured cheque nor there was a
joint bank account. It was the case of complainant that both the husband and
wife are liable under Section 138 r/w Section 141 of the NI Act because it was
the joint liability of both to pay the professional bill.
High Court refused to
quash the criminal complaint against the appellant, giving rise to the present
appeal in the Supreme Court. The Supreme Court allowed the appeal and ordered
to quash the criminal complaint against wife.
Issue:Whether wife (appellant) can be
prosecuted for the offence punishable under Section 138 r/w Section 141 of the
NI Act, even when the dishonoured cheque was neither drawn from her bank
account nor she was a signatory to the cheque?
Held:
Court
held that 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 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.
Issue:Can Section 141 of the NI Act be
made applicable to the individuals?
Held:
The
Court held that Section 141 of the NI Act is relating to the offence by
companies and it cannot be made applicable to the individuals. 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
liability), but cannot be said to be the offence committed by a company or by
corporate or firm or other association of individuals. Therefore, the appellant
cannot be convicted with the aid of Section 141 of the NI Act.