Non signy of joint account holder tried in sec 138
neeraj
(Querist) 15 January 2020
This query is : Resolved
Hello,
My aunty are one of the accused in 138 case she did not signed any check but she is the joint account holder of the cheque. cheque is signed by her husband. And also the check was not given to the complainant but missused by a financer how handed over the cheque in question to a third person.
Case in court and we already logged a complaint u/s 340 against the complainant.
What else we can do.
Raj Kumar Makkad
(Expert) 15 January 2020
If cheque has not been issued against the lawful debt of the complainant then it can definitely be rebutted before the same court. Proceeding initiated under section 340 Cr. P. C.
Raj Kumar Makkad
(Expert) 15 January 2020
You should trust upon your lawyer to whom you have engaged by paying his fee.
P. Venu
(Expert) 16 January 2020
What is the stand that the accused has taken in the reply furnished to the statutory notice?
Dr J C Vashista
(Expert) 17 January 2020
You have already engaged / paid an able, competent and intelligent lawyer to contest the case, who is well aware about facts/ documents of the matter, you should have faith in him/ her and proceed as advised. However, if you have lost faith in him/her it is better to change him/her immediately.
If you feel strong to have a second opinion and advise you should consult a local prudent lawyer for better appreciation of facts/documents, professional advise and proceeding.
T. Kalaiselvan, Advocate
(Expert) 25 January 2020
We also hold that under section 138 of the NI 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," a bench of justices P Sathasivam and J S Kehar said
The Supreme Court has held that a joint account holder cannot be prosecuted in a cheque bounce case unless the cheque has been signed by each and every person of such account.
"This court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act," the bench further said.
The verdict gave relief to a woman who had challenged the summons issued to her for the dishonour of cheque issued by her husband from their joint account. The Bombay High Court had refused to quash the summons issued by the trial court to her along with her husband.
The apex court had, in its judgement, said "considering the language used in Section 138 and taking note of background agreement pursuant to which a cheque is issued by more than one person, we are of the view that it is only the 'drawer' of the cheque who can be made liable for the penal action under the provisions of the N.I. Act. It is a settled law that strict interpretation is required to be given to penal statutes."
"The proceedings filed under Section 138 cannot 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 cheque can, in no case "except in case of Section 141 of the NI Act", be extended to those on whose behalf the cheque is issued," it said.
