Mrs. Vibha Manish Tejani Vs Mr. Prakash Chimanlal Sheth

MRS. VIBHA MANISH TEJANI (AS SELF AND AS PROPRIETOR OF M/S. ME AND ME ENTERPRISES) AGED ABOUT 52 YEARS, RESIDING AT FLAT NO.14A, 14^TH FLOOR, SOLITAIRE BUILDING, COSMOS JEWEL, NEAR D MART MALL, GHODBUNDER ROAD, THANE, WEST-400 615.

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…PETITIONER

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Digitally signed by GEETHA P G Location: HIGH COURT OF KARNATAKA

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(BY SRI. RANJAN KUMAR K., ADVOCATE)

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AND:

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MR. PRAKASH CHIMANLAL SHETH AGED ABOUT 56 YEARS, RESIDING AT NO.1103, SULSA APARTMENT, 254-RIDGE ROAD, MALABAR HILL, MUMBAI-400 006.

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…RESPONDENT

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(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE)

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NC: 2025:KHC:42810 CRL.P No. 11851 of 2022

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HC-KAR

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE, PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.457/2022 FILED BY THE COMPLAINANT UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT AGAINST THE PETITIONER IS PENDING BEFORE THE COURT OF J.M.F.C., 5^TH COURT DAKSHINA KANNADA, MANGALORE FOR THE OFFENCE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT, ETC.

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THIS PETITION, COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.I.ARUN

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ORAL ORDER

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The case of the petitioner is that she stood as a guarantor for the money payable by her husband to the respondent and issued the cheque, which is the subject matter of the criminal petition. It is submitted that the respondent has presented the cheques of both the petitioner as well as her husband and both have been dishonoured. It is submitted that the respondent is entitled to recover the amount mentioned in one of the cheques

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3 - NC: 2025:KHC:42810 CRL.P No. 11851 of 2022

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HC-KAR

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and not both the cheques. However, the respondent has initiated the proceedings under the Negotiable Instruments Act, 1881, against both the petitioner as well as her husband. The present case pertains only to the cheque issued by the petitioner alone and not her husband. It is submitted that the cheque is drawn on Janata Sahakari Bank Ltd., Pune, having its branch at Thane. It is also submitted that the cheque has been presented at Kotak Mahindra Bank, Opera House, Mumbai Branch, but the case has been filed at JMFC V Court, Mangaluru and the same is without jurisdiction.

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Per contra, the respondent submits that the cheque

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has been issued towards a legally dischargeable debt and the respondent is having a right to recover the debt either from the principal borrower or from the guarantor under the law. As there was a default committed by the principal borrower, the cheque of the guarantor also has been presented in the Bank and the same has been dishonored. It is submitted that liability of the petitioner and her

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NC: 2025:KHC:42810 CRL.P No. 11851 of 2022

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HC-KAR

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husband are joint and several, and hence, the cheque issued has to be considered towards a legally dischargeable debt.

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It is further submitted that the respondent has an account in Kotak Mahindra Bank, Bendur Branch, Mangaluru and it was presented in Kotak Mahindra Bank, Mumbai Branch, as the said Bank provides for that facility and the transaction has to be termed as having presented the cheque at Bendur Branch, Mangaluru and that the said Mumbai Branch is only a collection agent for collecting the cheque.

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In respect of liability in a loan transaction, both the principal borrower and guarantor are generally liable to repay the debts. Their liability is joint and several. The lender is at liberty to proceed against either of them unless the contract or a specific law prohibits the same. The onus is on the guarantor who takes up a contention that the money cannot be recovered from him to establish the same. In the present case, no such provision in the

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5 - NC: 2025:KHC:42810 CRL.P No. 11851 of 2022

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HC-KAR

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contract or law is shown by the petitioner. It is further admitted that the cheque has been issued as a guarantor's cheque to the legally dischargeable debt of the principal borrower. Under the said circumstances, quashing of the proceedings pending before the trial Court filed under the provisions of the Negotiable Instruments Act does not arise.

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In so far as it relates to jurisdiction, the courts having jurisdiction over the Bank of the petitioner as well as the respondent can entertain the complaint for dishonour of cheques. In the instant case, the Banker of the respondent herein is Kotak Mahindra Bank, Bendur Branch, Mangaluru and the Mumbai Branch is only a collection agent who collects the cheque. I do not see any infirmity in entertaining the private complaint by JMFC V Court, Mangaluru under the given facts and circumstances of the case.

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For the aforementioned reasons, the criminal petition being devoid of merits is hereby dismissed.

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