IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 Crl.MC.No. 2624 of 2005(C) -------------------------- CC.276/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... PETITIONER(S): 1ST ACCUSED: ------------------------------------------------ N. RAJAGOPAL, S/O. N.T. NATARAJA PILLAI, TC NO.36/1242, SUBHASH NAGAR, PERUNTHANNI, VALLAKADAVU P.O., THIRUVANANTHAPURAM. BY ADV. MR.SUMAN CHAKRAVARTHY RESPONDENT(S): COMPLAINANT & STATE OF KERALA: ------------------------------------------------------------------------------------ 1. P. VIDYA, T.C.NO.45/4054, SHANKAR BHAVAN, PALAYATHU LANE, CHALAI, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS.MR.R.T.PRADEEP, MR.V.VIJULAL. R2 BY PUBLIC PROSECUTOR MR. B.VINOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2624 OF 2005 =========================== Dated this the 24th day of July,2009 ORDER Petitioner is the first accused and first respondent the complainant in C.C.275/2004 on the file of Judicial First Class Magistrate-V, Thiruvananthapuram. First respondent lodged Annexure A complaint alleging that second accused the wife of the petitioner issued the dishonoured cheque dated 1.10.2003 for Rs.5 lakhs and the petitioner and second accused convinced her that the cheque is being issued from a single account maintained by them in the style of Either or Survivor and when the cheque was dishonoured demand for the amount was made in writing and both the accused failed to pay that amount and thereby committed the offence. Petitioner filed CMP 3464/2005 for dropping the proceedings as against him which was dismissed by the learned Magistrate by Annexure E order as the case is being tried as a summons case and so it cannot be dropped at that stage. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings as against Crl.M.C.2624/2005 2 the petitioner. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. The argument of the learned counsel for the first respondent is that after receipt of the notice demanding the amount covered by the dishonoured cheque, a reply was sent by the petitioner as well as his wife and it is not disclosed therein that the cheque was not issued from and either or survivor account and in such circumstance, an offence under section 138 will lie eventhough petitioner is not a signatory to the cheque. 4. Learned counsel appearing for the petitioner relying on the decision of this Court in Devi. Haridas (2004 (3) KLT 355) and a single Judge of the Madras High Court in Priyadharshini v. L.I.C Housing Finance Ltd (2005(4) KLT SN 27) argued that even if it is a joint account when the cheque was signed by one of the joint account holders alone an offence under section 138 is not attracted as against the other joint holder, who is not a signatory to the cheque. Learned counsel also pointed out that Annexure B certificate issued by the Bank shows that it is not a joint account and the account is maintained by the wife of the petitioner alone and in such circumstance in any case the case as against the petitioner is to be quashed. 4. This Court in Devi's case (supra) considered the Crl.M.C.2624/2005 3 effect of a dishonoured cheque issued from a joint account, as against the joint holder who is not a signatory to the cheque. It is held that the mere fact that the account can be operated jointly by both the accused cannot, by no stretch of imagination invite culpable liability under section 138 of Negotiable Instruments Act as against account holder of the joint account who is not a signatory to the cheque and the proceedings under section 138 of Negotiable Instruments Act as against him is not maintainable. The Madras High Court in Priyardharshini's case (supra) has also held the same position. 5. In the light of the legal position the case as against the petitioner can only be quashed. Learned counsel appearing for the first respondent argued that in that case, an offence under section 420 of Indian Penal Code is attracted and therefore the case cannot be quashed. I cannot agree with the submission also. There is no whisper in Annexure A complaint to attract an offence under section 420 of Indian Penal Code. In the absence of an allegation that there was a dishonest intention to cheat at the time when the amount was parted, an offence under section 420 of Indian Penal Code is not attracted at all. 6. In such circumstance the petition is allowed.C.C.276/2004 on the file of Judicial First Class Magistrate as against petitioner the first accused is Crl.M.C.2624/2005 4 quashed. It is made clear that the case as against the second accused, the signatory to the cheque can be proceeded. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006