Husband & wife both are liable under sec. 138 of ni act.
Kunal Sarkar
(Querist) 13 February 2013
This query is : Resolved
Respected sir(s),
My case is that, The wife purchased a vehicle from a private finance company under hypothication agreement and she fails to pay the EMI against the hire purchase vehicle and subsequently the Husband issued a cheque amounting Rs. 1,48,000/- to the finance to clear-up the lone but the said cheque was dishonoured and accordingly the finance company issued demand notice to the Husband and after lapse of statutory period the finance company filed complaint under Sec. 138 of NI Act, against the both Husband and wife.
Now my question is that,
1. Whether in this circumstances both husband & wife are liable under Sec. 138 of NI Act ?
2. Whether Sec. 138 NI Act is attracted against the the wife ?
3. Whether court can take cognizence the under Sec. 138 against the Husband and Sec. 420 of IPC against the Wife ?
4. Whether it is necessary to serve demand notice upon the Wife ?
5. Please refer some citation in this regard.
ANIL KUMAR 8867907494
(Expert) 14 February 2013
1.no
2. No
3. 138 applicable to husband , 420 is not applicable to wife
4. No
Devajyoti Barman
(Expert) 14 February 2013
If both husband and wife joint holder of the account then both of them may be prosecuted under this proceeding.
Raj Kumar Makkad
(Expert) 14 February 2013
I do agree with Anil and suggest you to search relevant citation from indiankanoon.
Guest
(Expert) 14 February 2013
Dear Kunal,
Except partly to point (3), I disagree with the views of Shri Anil Kumar on all the four points of his advice with the following reasons:
1) Yes, sec 138 is attracted against both the husband and wife, if the both husband and wife are joint holders of account, as already made clear by Shri Devajyoti Barman. Here husband is the drawer of the dishonoured cheque, which was issued to satisfy the liability of the wife. The cheque was issued for and on behalf of the wife.
2) Yes, sec 138 is attracted against wife, as the cheque was issued against amortization of loan of the wife, and the cheque can be considered to have been presented for, on behalf of the wife, may be who is the drawer of the cheque.
3) Although sec.138 is attracted against the husband, but cheating/ fraud can be considered to have been committed for, on behalf or by the wife to dupe the company by issue of false instrument against the loan of wife, she being a debtor of the company. So, clearly sec.420 is attracted against her.
4) Definitely, yes. The demand notice was necessary to be issued to wife, as the liability of issue of dishonoured instrument against her liability pertained to wife.
5) You, being a legal practitioner, would need to devote yourself to find out citations, if any available in favour of the husband and wife case.
R.K Nanda
(Expert) 14 February 2013
agree with Barman.
Sankaranarayanan
(Expert) 14 February 2013
no more further details are available. all are clearly explained by my friend respectable Mr Dhingra, i too agreed with barman too
V R SHROFF
(Expert) 14 February 2013
Only Husband liable for 138.
Wife in cheating.
