Bombay High Court
Sau Reena Sandip Chauhan And Another vs Pradip Ramdas Nimkar And Another on 23 April, 2025
2025:BHC-NAG:5104
J APL-105-2025.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.105 OF 2025
APPLICANTS : 1 Sau. Reena Sandip Chauhan,
Aged about 35 years, Occ: Teacher.
2 Smt. Vanubai Laxman Chauhan,
Aged about 61 years, Occ: Household both are
R/o. Mainline, Darwha Tq. Darwha, Distt.
Yavatmal.
..VERSUS..
RESPONDENTS : 1 Pradip Ramdas Nimkar,
aged about 45 years, Occ: Business, R/o. Near
BSNL office Yavatmal Road, Darwha, Tq.
Darwha & Distt. Yavatmal.
2 Sandip Laxman Chauhan,
aged 38 years, Occ: Business, R/o. Main-line
Darwha Tq. Darwha, Distt. Yavatmal.
------------------------------------------------------------------------------------------------------------------------------------
Mr M. M. Khan, Advocate for Applicants.
Mr A. M. Balpande, Advocate for Non-Applicant No.1.
------------------------------------------------------------------------------------------------------------
CORAM : M. W. CHANDWANI, J.
DATED : 23rd APRIL, 2025.
ORAL JUDGMENT
1. Heard.
2. The order of issuance of process dated 16.01.2024 passed
against the present applicants by the learned Judicial Magistrate
First Class, Darwha in Summary Criminal Case No.57 of 2024 has
been challenged by them in this application on the ground that the
applicants are not the drawers of the alleged cheque. Just because
J APL-105-2025.odt
2
they were joint account holders, they cannot be held liable for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as “the N.I. Act“).
3. It is not necessary to go into the matrix of the case in
detail. Suffice to say that respondent No.1 filed Summary Criminal
Case No.57 of 2024 against the present applicants and respondent
No.2 for the offence punishable under Section 138 of the N.I. Act,
alleging that the cheque bearing No.000036 dated 20.11.2023 was
issued by respondent No.2 from the joint account of the applicants
and respondent No.2 in favour of respondent No.1 for the amount
of Rs.7,04,000/- which came to be dishonored. After the process of
issuance of notice, applicants and respondent No.2 committed the
offence punishable under Section 138 of the N. A. Act, by not
paying the amount of Rs.7,04,000/-.
4. Mr. M. M. Khan, learned counsel appearing on behalf of
the applicants submitted that it is the person who has drawn a
cheque for payment of any amount of money to another person for
discharge of his legal liability who is liable to be convicted under
Section 138 of the N.I. Act, if the said cheque returns unpaid on
account of insufficient funds or for the reason that it exceeds the
J APL-105-2025.odt
3
amount that has to be paid from the account by an agreement made
with the bank. According to him, just because the applicants have a
joint account with respondent No.2 from which the cheque has
been drawn by respondent No.2 in favour of respondent No.1, the
applicants cannot be held liable for the offence punishable under
Section 138 of the N.I. Act. This aspect has not been considered by
the learned Magistrate while issuing process on the complaint filed
by respondent No.1. To buttress his submission, he seeks to rely on
the decision of this Court in the case of Aarti Shailesh Shah vs.
Satish Vasant Dharukkar and Anr., 2024 ALL MR (Cri) 722,
wherein this Court by relying on the case of Aparna A. Shah vs.
Sheth Developers Pvt. Ltd. and Ors., (2013) 8 SCC 71 has held that
prosecution cannot stand against the person who holds a joint
account with the accused.
5. Per contra, Mr. A. M. Balpande, learned counsel
appearing on behalf of respondent No.1 vehemently objected the
application on the ground that the first sentence of the complaint
mentions that the applicants and respondent No.2 run a business of
sale and purchase of agriculture products in the name of New
Bajrang Trading Company. Taking help of this nomenclature, it has
J APL-105-2025.odt
4
been argued that New Bajrang Trading Company is a Company and
therefore, the applicants and respondent No.2 are liable for the
offence punishable under Section 138 of the N.I. Act. It is also one
of the arguments of the learned counsel for respondent No.1 that
the applicants and respondent No.2 belong to the same family and
therefore, they form a Joint Hindu Family. The cheque issued by
respondent No.2 from the joint account of the applicants and
respondent No.2 binds the applicants as well as in case of dishonor
of cheque, make them liable for the offence punishable under
Section 138 of the N.I. Act. To buttress his submission he seeks to
rely on the case of Riya Bawri and Others vs. Mark Alexander
Davidson and Others, (2023) 15 SCC 304, wherein, the Hon’ble
Supreme Court in paragraphs 18 and 21 of its decision has held as
under :
“18. The specific allegations made against the accused in
the complaint, including the respondent no.1, were that they were
in- charge of and were responsible for the affairs of respondent
no.3 firm, for conduct of the business affairs of the firm. Thus,
they were liable to be proceeded against and punished. The
offence has been committed with the consent and connivance of
the Accused 2 to 4, which included the respondent 1.
21. It is well settled that the final judgment of the trial
Court will depend on the evidence adduced before it. As there are
specific allegations against the Respondent 1 in the complaint and
he was admittedly a partner in the partnership firm when the rent
deed was executed, he is liable to face prosecution. Powers under
Section 482 of the Code can be exercised by the High Court in
J APL-105-2025.odt
5case when it comes across unimpeachable and incontrovertible
evidence to indicate that the partner of the firm did not have any
concern with the issuance of cheques. The case in hand is not of
that kind.”
Reliance is also placed on Rina Sanjiv Kamdar vs.
Murlidhar T. Tilwani and others, 2025 (1) Mh.L.J. (Cri) 138,
wherein this Court in para 11 has held as under :
“11. A learned Single Judge of this Court in the case of
Dadasaheb Rawal (supra) has discussed the scope of the term
“Association of Individuals” in paragraph 11, as under:
“11. Section 141 is comprehensive. It would cover all types of
business organisations which are shown therein. The definition is
inclusive and is used to convey something more than what is
defined. Consequently, the term “association of individuals” will
include Hindu Undivided Family of which the business is said to
be a joint concern. Section 138 of the Negotiable Instruments
Act, 1881 is enacted in order to safeguard the credibility of
commercial transactions and to prevent bouncing of cheques by
providing personal liability against the drawer of the cheque. In
case of a cheque issued by the firm, the drawer of the cheque is
the firm. In case of cheque issued by the business firm of Joint
Hindu Family, all the members can be roped into as the drawers
of the cheques though signatory is one of them. Under these
circumstances, the impugned order is unsustainable. The learned
Sessions Judge failed to see that quashing of the process at the
premature stage was not called for in view of the Explanation
appended to Section 141 of the Negotiable Instruments Act. In
any case, at such a premature stage, the process ought not to have
been quashed against the respondent Nos. 1 and 2. The
prospective defence of the respondent Nos. 1 and 2 could not be
a sufficient ground to quash the order of process issued against
them. Needless to say, the impugned order is patently illegal and
liable to be interfered with and deserves to be set aside.”
6. A submission is also made by the learned counsel for
respondent No.1 that the notice under Section 138 of the N.I. Act
has been served on the applicants and respondent No.2, but no
J APL-105-2025.odt
6
reply has been filed by them. To support his contention, he seeks to
rely on the decision of the Hon’ble Supreme Court in the case of
Ashok Singh vs. State of Uttar Pradesh and Another, 2025 SCC
OnLine SC 706. An attempt has been made to argue that since no
reply was given to the notice issued under Section 138 of the N.I.
Act, therefore, a presumption has to be drawn that there is a legally
enforceable liability against the applicant. There is no such
law/presumption, therefore, I do not find force in the argument of
the learned counsel for respondent No.1.
7. The sum and substance of the argument of the learned
counsel for respondent No.1 is that the proceedings cannot be
quashed against the applicants at this stage as the evidence is yet to
be recorded in the complaint filed by respondent No.1.
8. With the able assistance of the learned counsels
appearing on behalf of applicants and respondent No.1, I have gone
through the complaint. Rather, a statement is made by the learned
counsel for respondent No.1, on instructions, that Bajrang Trading
Company is not a company but is a proprietorship firm. However,
the learned counsel for respondent No.1 still seeks reliance on
J APL-105-2025.odt
7
Section 141 of the N.I. Act and vehemently submitted that the
proceedings against the applicants cannot be quashed. A bare
perusal of complaint does not reveal that respondent No.1 in his
complaint has alleged that Bajrang Trading Company is a registered
Company under the Companies Act or the said business belongs to
Joint Hindu Family. Even otherwise, there is no whisper that the
applicants are responsible for the day-to-day affairs of Bajrang
Trading Company or its members constitute a Joint Hindu Family.
Therefore, the submission of the learned counsel for respondent
No.1 that Section 141 of the N.I. Act, will be applicable is fallacious
and requires to be rejected outrightly. This takes me to Section 138
of the N.I. Act, which 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:
Provided that nothing contained in this Section shall apply
unless–
(a) the cheque has been presented to the bank within a period of
J APL-105-2025.odt
8six 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.
Explanation.– For the purposes of this Section, “debt or other
liability” means a legally enforceable debt or other liability.”
9. Thus, Section 138 of the N.I. Act makes it clear that it is
the person who has drawn the cheque who is responsible for
dishonor of the said cheque issued by him on account of insufficient
funds and shall be liable for punishment if he does not pay the
cheque amount within the statutory period even after receipt of
notice under Section 138 of the N.I. Act. In the case of Aparna A.
Shah (supra), the Hon’ble Supreme Court in para 23 has held as
under :
“23. The learned Single Judge of the Madras High Court in
Devendra Pundir v. Rajendra Prasad Maurya, 2008 Cri. LJ 777
(Mad), following decisions of this Court, has concluded thus:
“7. This Court is of the considered view that the above
proposition of law laid down by the Hon’ble Apex Court in the
decision of Fine Tubes (supra) is squarely applicable to the facts
of the instant case. Even in this case, as already pointed out, the
first accused is admittedly the sole proprietrix of the concern
namely, “Kamakshi Enterprises” and as such, the question of the
second accused to be vicariously held liable for the offence said to
have been committed by the first accused under Section 138 of
the Negotiable Instruments Act not at all arise.”
J APL-105-2025.odt
9
After saying so, learned Single Judge, quashed the proceedings
initiated against the petitioner therein and permitted the Judicial
Magistrate to proceed and expedite the trial in respect of others.”
10. Thus, the observation made by the Hon’ble Supreme
Court in the case of Aparna A. Shah (supra) is squarely applicable to
the facts of the present case. Therefore, the prosecution against the
applicants cannot stand. Reliance placed by the respondent No.1 on
the decisions in the case of Riya Bawri (supra), Rina Sanjiv Kamdar
(supra) and Ashok Singh (supra) is misplaced. Hence, the
application is allowed. Consequently, the order of issuance of
process dated 16.01.2024 passed against the present applicants by
the learned Judicial Magistrate First Class, Darwha in Summary
Criminal Case No.57 of 2024 is hereby set aside.
11. It is submitted by both the learned counsels appearing
on behalf of the respective parties that they may seek the recourse
of settlement through mediation or Lok Adalat.
12. Accordingly, the criminal application stands disposed
of.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 10/05/2025 14:07:06
[ad_1]
Source link