Allowed¶¶45

Mrs. Rukhiya W/O Late Rasheedullah v. Mr. Abdul Razaq S/O Late Dastagir Saheb Nagarchi

Negotiable Instruments Act, 1881 – Section 138 – Prosecution of joint account holder

Karnataka HC16 Jan 2025CRL.P/100480/2022

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What is this about?

Section 138 NI Act; joint account holder not signatory to cheque; only drawer can be prosecuted; cheque dishonored after death of sole signatory; quashing under Section 482 Cr.P.C.; abuse of process of law; Aparna A. Shah v. Sheth Developers Pvt. Ltd.; Alka Khandu Avhad v. Amar Syamprasad Mishra; co-ordinate Bench decisions disapproved; Karnataka High Court Dharwad Bench; CRL.P No. 100480 of 2022; Justice Hemant Chandangoudar; CC No.3555/2021 Hubballi.

What did the court decide?

Petition allowed; impugned proceedings in CC No.3555/2021 on the file of Prl. Civil Judge and JMFC, Hubballi quashed. ¶¶45

Mrs. Rukhiya W/O Late Rasheedullah Vs Mr. Abdul Razaq S/O… — Cheque Dishonour | Karnataka HC (2025)

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NC: 2025:KHC-D:657 CRL.P No. 100480 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16^TH DAY OF JANUARY, 2025 BEFORE

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THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 100480 OF 2022 (482(Cr.PC)/528(BNSS))

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BETWEEN:

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MRS. RUKHIYA W/O. LATE RASHEEDULLAH AGED ABOUT 64 YEARS, R/AT. # 502, MADHURI, 11^TH MAIN, 3^RD CROSS, B.H.C.S LAYOUT, SUBRAMANYAPURA, BANGALORE – 560061.

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…PETITIONER

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(BY SRI. SURESH SHETTEMMANAVAR AND SRI. SURAJ SAMPATH, ADVOCATES)

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AND:

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MR. ABDUL RAZAQ S/O. LATE DASTAGIR SAHEB NAGARCHI, AGED ABOUT 63 YEARS, RESIDING AT C/O. SHOAIB KALEBUDDE, # 32/2, MAHALDAR GALLI, NEAR GARDEN PETH, HUBBALLI - 580028.

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.01.21 07:28:36 +0530

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SINCE DECEASED BY LRs.,

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1(A). SMT. ARIFA SAYED W/O. ABDUL RAZAK NAGARCHI, AGE. 60 YEARS, OCC. HOUSEHOLD, R/O. HOUSE NO. 41/11, ANAND ESTATE, BEHIND NSD, ALTO DABOLIM, GOA-403801.

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1(B). SMT. TASNEEM D/O. ABDUL RAZAK NAGARCHI, AGE. 30 YEARS, OCC. NOT KNOWN, R/O. HOUSE NO. 41/11, ANAND ESTATE, BEHIND NSD, ALTO DABOLIM, GOA-403801.

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1(C). SMT. FARHEEN KITTUR, AGE. 34 YEARS, OCC. NOT KNOWN, R/O. HOUSE NO. 86/3, MAHALDAR GALLI, BEHIND MAHALDAR,

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NC: 2025:KHC-D:657 CRL.P No. 100480 of 2022

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1(D). GALLI MASJID, HUBBALLI-580028. SMT. LUBNAZ D/O. ABDUL RAZAK NAGARCHI, AGE. 36 YEARS, OCC. NOT KNOWN. R/O. HOUSE NO. 41/11, ANAND ESTATE, BEHIND NSD, ALTO DABOLIM, GOA-403801.

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…RESPONDENTS

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(BY SRI. GOURISHANKAR MOT, ADVOCATE FOR R1(A TO D))

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS IN THE COMPLAINT BEARING CC NO.3555/2021 (VIDE ANNEXURE A AND D) PENDING BEFORE THE PRINCIPAL CIVIL JUDGE AND JMFC, AT HUBBALLI FILED BY THE RESPONDENT U/S 200 OF THE CR.P.C. R/W SECTION 138 OF N.I. ACT, 1881 AND DIRECT THE RESPONDENT TO PAY THE COSTS OF THESE PROCEEDINGS TO THE PETITIONER.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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ORAL ORDER

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The petitioner, who is sought to be prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), is before this Court.

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The respondent filed a private complaint under Section 200 of the Code of Criminal Procedure (Cr.P.C.) alleging that the petitioner’s husband issued a cheque dated 28.01.2021, drawn on a joint account held by the petitioner and her husband, towards a legally recoverable debt. When the cheque was presented for realization, it was dishonored for insufficient funds. The learned Magistrate, after recording the sworn statement of the complainant, took cognizance of the offence.

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NC: 2025:KHC-D:657 CRL.P No. 100480 of 2022

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Learned counsel for the petitioner submitted that although the subject cheque was drawn on a joint account held by the petitioner and her husband, the petitioner was not a signatory to the cheque. Therefore, the petitioner, who is not the drawer of the cheque, cannot be prosecuted for the offence punishable under Section 138 of the NI Act. In support, reliance was placed on the decisions of the Hon’ble Supreme Court in Aparna A. Shah v. Sheth Developers Pvt. Ltd. & Another and Alka Khandu Avhad v. Amar Syamprasad Mishra & Another.

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In response, learned counsel for the respondent/complainant submitted that the subject cheque was drawn on the joint account held by the petitioner and her husband and that the petitioner, as a joint account holder, is impliedly a drawer of the cheque. Reliance was placed on the decisions of a co-ordinate Bench of this Court in Crl.R.P. No.193/2013 C/W Crl.R.P. No.192/2013, dated 18.01.2023, and Crl.P. No.13765/2023, dated 15.04.2024.

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After considering the arguments of the learned counsel for both parties, the following is noted:

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The cheque dated 28.01.2021 was issued by the petitioner’s husband in relation to a joint account maintained with South Indian Bank, towards repayment of a loan borrowed by the petitioner’s husband. The petitioner’s husband passed away on 04.02.2021, and the cheque dishonor endorsement was issued on 26.03.2021, subsequent to his death. A perusal of the cheque indicates that it was signed solely by the petitioner’s husband as a

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NC: 2025:KHC-D:657 CRL.P No. 100480 of 2022

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joint account holder. The petitioner was not a signatory to the cheque.

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The issue of whether a joint account holder, who is not a signatory to the cheque, can be prosecuted under Section 138 of the NI Act was examined by the Hon’ble Supreme Court in Aparna A. Shah v. Sheth Developers Pvt. Ltd. & Another, wherein it was held:

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i) “Under Section 138 of the NI Act, only the drawer of the cheque can be prosecuted. If a cheque is issued from a joint account, a joint account holder cannot be prosecuted unless they have signed the cheque.”

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Similarly, in Alka Khandu Avhad v. Amar Syamprasad Mishra & Another, the Hon’ble Supreme Court held:

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i) “A person who is not a signatory to the cheque, even if jointly liable to pay the debt, cannot be prosecuted under Section 138 of the NI Act. The offence is confined to the signatory of the cheque drawn on an account maintained by them.”

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The decisions of the co-ordinate Bench of this Court, relied upon by the respondent/complainant, cannot be accepted as they were rendered without reference to the above-cited decisions of the Hon’ble Supreme Court.

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Therefore, in light of the aforementioned principles, the petitioner, who is not a signatory to the subject cheque drawn on the joint account, cannot be prosecuted under Section 138 of the

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NC: 2025:KHC-D:657 CRL.P No. 100480 of 2022

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NI Act. The continuation of criminal proceedings against the petitioner would thus amount to an abuse of the process of law.

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Accordingly, the petition is allowed. The impugned proceedings in CC No.3555/2021 on the file of Prl. Civil Judge and JMFC, Hubballi, is hereby quashed.

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Sd/(HEMANT CHANDANGOUDAR) JUDGE

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JTR Ct:vh List No.: 1 Sl No.: 46

Mrs. Rukhiya W/O Late Rasheedullah v. Mr. Abdul Razaq S/O Late Dastagir Saheb Nagarchi

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Mrs. Rukhiya W/O Late Rasheedullah v. Mr. Abdul Razaq S/O Late Dastagir Saheb Nagarchi

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