Chattisgarh High Court
S. Nagendra Rao vs Smt. Saroj Choubey on 27 January, 2025
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2025:CGHC:4778
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 1023 of 2022
1. S. Nagendra Rao S/o Shri S. Narsingh Rao, Aged About 56 Years.
2. Smt. S. Uma Maheshwari W/o Shri S. Nagendra Rao Aged About 48
Years.
Both are R/o Quarter No. 5-A, Street No. 16, Sector -7, Bhilai, Thana
Bhilainagar, District Durg Chhattisgarh.
... Petitioner(s)
versus
• Smt. Saroj Choubey W/o Shri Vinod Choubey Aged About 52 Years R/o.
Quarter No. B, Street No. 16, Sector 7-, Bhilai, Thana Bhilainagar,
District Durg Chhattisgarh.
---- Respondents
-----------------------------------------------------------------------------------------------
For Petitioners : Mr. Rajendra Patel, Advocate on behalf
of Mr. Sunil Sahu, Advocate.
For Respondent/State : Mr. Ali Fazal Mirza, Advocate.
———————————————————————————————–
Hon’ble Shri Arvind Kumar Verma, Judge
Order on Board
27.01.2025
1. Challenge in this petition is to the order dated 10/06/2022 (Annexure P-
1) passed in Criminal Revision No.51/2022 by the learned Second
Additional Sessions Judge, Durg, District -Durg (C.G.) arising out of
order dated 12/08/2021 (Annexure P-2) passed in Criminal complaint
Case No.5956/2021 by the learned Judicial Magistrate First Class,
Durg.
2. Relevant facts for disposal of this petition is that
respondent/complainant has filed a complaint case under Section 138
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of Negotiable Instrument Act (NI Act) stating that the petitioners have
obtained the financial help from him and to repay the said amount/loan
has given the cheque (No.000019 amounting Rs.6,90,000/- dated
16.06.2021) from their joint account, however, said cheque got
dishonored due to insufficient fund and the information was given by the
Bank of India on 06/07/2021. The notice for demand was given on
08/07/2021 which was served on 09/07/2021, but the amount has not
been returned to the complainant, so he has filed the complaint case
against the petitioners and based upon which trial Court has passed the
order for registration of complaint on 12.08.2021. Against which,
petitioner No.1/S. Nagendra Rao filed the revision petition before the
Session Court, which came to be dismissed/rejected vide impugned
order. Hence, this petition.
3. Learned counsel for the petitioners submits that alleged amount has
been given by the complainant from the year 2015 to 2017 and the
complaint case was filed in the year 2021, therefore, complaint case
itself is not maintainable as the same is filed after lapse of time.
Learned trial Court has committed an error in entertaining the time
barred complaint and also erred in registering the complaint case
against the petitioners without calling limitation report and recording the
statement of complainant. Petitioner No.1 filed the revision before the
learned Session Court on the ground that signature of petitioner No.2 is
not available in the alleged cheque, even there is no averment in the
notice or in the complaint that she has taken the amount/loan from the
complainant, but the Revisional Court has erroneously
rejected/dismissed the revision by the impugned order. Hence,
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impugned order Annexure P-1, arising out of order Annexure P-2, be
set-aside. In support of his contention, he places reliance upon the
decision of Hon’ble Supreme Court in case of Alka Khandu Avhad
versus Amar Shyamprasad Mishra & Anr, (2021) 4 SCC 675 and
order of this Court in case of Mohd. Sami Ansari Versus State of
Chhattisgarh & another reported in 2011 (4) CGLJ 598.
4. Learned counsel for the respondent opposes the submission of counsel
for the petitioners and would submit that respondent/complainant had
filed a complaint case U/s 138 of N.I. Act for dishonor of cheque no.
000019 amounting to Rs.6,90,000/- which was given by the petitioners
from their joint in order to repay the loan amount, said cheque was
dishonored due to insufficient funds. Since, the petitioners have a joint
account, liability to pay the legally enforceable debt is a joint liability
which has been rightly observed by the learned Courts below. He
further submits that petitioners have not disputed the cheque or
adduced any evidence to rebut the presumption U/s 139 of N.I. Act,
neither they have relied on relevant defenses in order to get away with
the liability of legally enforceable debt. He further submits that
petitioners have an alternate and efficacious remedy to approach before
the learned Court below by way of appropriate application for
discharging the petitioner No.2 from the liabilities of section 138 of the
Negotiable Instruments Act.
5. Heard learned counsel for the parties and perused the records including
the impugned order.
6. Hon’ble Supreme Court in case of Alka Khandu Avhad (supra) held as
under:
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“Therefore, a person who is the signatory to the cheque
and the cheque is drawn by that person on an account
maintained by him and the cheque has been issued for the
discharge, in whole or in part, of any debt or other liability
and the said cheque has been returned by the bank
unpaid, such person can be said to have committed an
offence. 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 a 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.”
7. For ready reference, Section 138 of the NI Act reads as under:
“138. Dishonour of cheque for insufficiency, etc., of
funds in the account.– Where any cheque drawn by a
person on an account maintained by him with a banker for
payment of any amount of money to another person from
out of that account for the discharge, in whole or in part, of
any debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the
credit of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such
person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Act,
be punished with imprisonment for [a term which may be
extended to two years], or with fine which may extend to
twice the amount of the cheque, or with both:
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Provided that nothing contained in this section shall apply
unless–
(a) the cheque has been presented to the bank
within a period of six months from the date on
which it is drawn or within the period of its validity,
whichever is earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for
the payment of the said amount of money by giving
a notice in writing, to the drawer of the cheque,
[within thirty days of the receipt of information by
him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or, as the case may be, to the holder in due course
of the cheque, within fifteen days of the receipt of
the said notice.”
8. It is an admitted position that cheque in question was issued by
petitioner No.1 in favour of the respondent/complaint and there is joint
account in the name of both petitioners.
9. Section 138 of NI Act provides that the signatory to the cheque and the
cheque is drawn by that person on an account maintained by him and
the cheque has been issued for discharge of any debt or other liability
and the said cheque has been returned by the Bank as ‘unpaid’, only
such person can be said to have committed an offence. However, in the
present case, cheque in question was issued by petitioner No.1 in his
personal capacity and petitioner No.2 neither signed the cheque nor
issued it.
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10. Section 141 of the NI Act is related to the offence by the companies and
it cannot be made applicable to individuals, two private individuals cannot
be said to be other association of individuals.
11. In view of the above discussions, present petition succeeds. Impugned
order Annexure P-1, arising out of order Annexure P-2 passed in
Criminal Complaint Case No.5956/2021 and all consequential
proceedings arising thereof is hereby quash/set-aside, qua petitioner
No.2/Smt. S. Uma Maheshwari only. However, complainant case against
petitioner No.1/S. Nagendra Rao is maintainable under the provisions of
Section 138 of the NI Act. Accordingly, the present petition is allowed in
part.
CC as per rules.
Sd/- Sd/-
(Arvind Kumar Verma)
Judge
J/-
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