IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: January 8, 2008 CRL.M.C. 8187/2006 GITA BERRY ..... Petitioner Through Mr. Vijay K. Gupta with Mr. Amit Kumar and Mr. Malip Dutt, Avocate versus GENESIS EDUCATIONAL FOUNDATION ..... Respondent Through Mr. N.Hariharan with Mr. M.A. Niyazi, Advocate Mr. M.N. Dudeja, APP CORAM: HON'BLE DR. JUSTICE S.MURALIDHAR O R D E R 1. Whether Reporters of local papers may be allowed to see the order? No 2. To be referred to the reporter or not? Yes 3. Whether the order should be reported in the digest? Yes Dr. S. Muralidhar, J (open court) 1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Crl. PC’) filed by the petitioner seeking quashing of the Complaint No. 431/1/06 titled as ‘Genesis Educational Foundation v. Crl.MC 8187/2006 1 of 7 Rajesh Berry & Another’ under Section 138 of the Negotiable Instrument Act, 1881 (‘Act’) . 2. The complaint sterns from a dishonoured cheque dated 20th January, 2006 drawn on the United Western Bank Limited by Shri Rajesh Berry, husband of the petitioner in favour of the complainant Genesis Educational Foundation in the sum of Rs.6,75,00,000/-. The case of the petitioner is that the offence under Section 138 of the Act cannot be said to have been made out against the petitioner only on the ground that she was a joint account holder along with her husband. She has admittedly neither drawn nor issued the cheque in question and therefore the complaint against her was not maintainable. 3. The petitioner further refers to the wording of Section 138 of the Act to contend that the drawing of the cheque by a person is an essential ingredient of the offence. He submits that this is not a case of an offence having been committed by a company to which Section 141 of the Act would apply. 4. Learned counsel for the complainant has been heard at great length. Crl.MC 8187/2006 2 of 7 He refers to Section 11 of the Indian Penal Code (‘IPC’) to contend that a word “person” in Section 138 of the Act contemplates ‘a plurality of persons.’ In this case since the account is a joint account and contemplates the accused both the petitioner as well as her husband operating it. He refers to a certificate dated 28th August, 2006 issued by the United Western Bank Limited to indicate that the account initially was in the name of the petitioner here and subsequently the name of her husband was added. On the strength of this document, it is submitted on behalf of the complainant that in fact it is the petitioner here who is the main account holder. Reliance is also placed upon a judgment of the Madhya Pradesh High Court in Ajit v. Smt. Kirti 1(2005)Banking Cases 315 in which it has been held that a joint account holder will be equally liable for an offence under Section 138 of the Act notwithstanding that such person did not draw the cheque in question which was dishonoured. 5. Both the learned counsel for the parties have referred extensively to several paragraphs of the complaint in support of their respective stands. According to the petitioner, the entire thrust of the complaint is only with regard to Mr. Rajesh Berry, husband of the petitioner and not the petitioner here. Reference is, in particular, made to paragraphs 6 and 12 to contend Crl.MC 8187/2006 3 of 7 that there is no specific averment vis-a-vis the petitioner here. On the other hand learned counsel for the complainant read the complaint which refers to the accused generally and imputes to them knowledge of the transactions in question to both of them. 6. In the first place there are certain facts which are not disputed. The cheque in question which stood dishonoured, was issued under the signature of Mr. Rajesh Berry. There is no seal of any group or association of persons or any registered body on behalf of whom Mr. Rajesh Berry was authorized to sign the said cheque. It is not dispute that the account was a joint account with the United Western Bank Limited. The relevant paragraph of the complaint pertaining to the issuance of cheque in question reads as under: “12. The accused pursuant to receiving the above said notice, approached the complainant society on or around 18th January, 2006 to settle the matter by offering Rs.6,75,00,000/- as full and final settlement towards the above said land. Although the value of the land was much higher than what was offered by the accused, however, as the accused assured the complainant society that the said amount of Rs.6,75,00,000/- would be paid at once, therefore, the complainant society accepted the said offer. The accused accordingly issued a Cheque No. 357431 dated 20.01.2006 drawn on United Western Bank Limited, Alied Crl.MC 8187/2006 4 of 7 Bhavan, 9, L.S.C. Madangir, New Delhi – 110 062 for the total amount of Rs.6,75,00,000/-. The above said cheque was handed over to the Secretary of the complainant society by the accused on 19th January, 2006 itself with full assurance that the said cheque would be duly honoured on presentation. Copy of the said cheque is annexed hereto and marked as Annexure P-8.” 7. A reading of the above paragraph to show that reference is really made to Rajesh Berry who alone has admittedly issued the cheque in question. Although there are paragraphs an ulterior to these paragraphs in the complaint to indicate that both the accused were possibly involved in the negotiations that took place earlier to the issuance of the cheque, there is no specific averment whether the petitioner here, i.e., Smt. Gita Berry herself was involved in the issuance of cheque in question which got dishonoured. 8. It requires to be recalled that the complaint is only under Section 138 of the Act and not under Section 420 IPC. In the latter, it may be relevant to examine the general nature of the transactions. However, when it comes to the offence under Section 138 of the Act the wording of the statute does not admit of any lose interpretation to accommodate the situation such as the present one. The wording is to the following effect “where any cheque Crl.MC 8187/2006 5 of 7 drawn by a person on an account with a banker for payment of any amount of money ………”. Then “such person” shall be deemed to have committed the offence. 9. The Madhya Pradesh High Court had in Ajit v. Smt. Kirti dealt with the case where a cheque issued by the husband and in the printed cheque the name of his wife was also printed as both were having a joint account. The mere factor in determining whether the intention was that the joint account is operated by a person that one takes the liability of the other when such cheque is issued by anyone. Admittedly in the instant case the cheque in question does not have even bear the name of either of the accused and that definitely will not name the present petitioner. 10. A reference was made by learned counsel for the complainant to the cross-examination of the complainant in the trial court and it was contended that nothing was elicited from the complainant to the effect that the petitioner was nowhere responsible for the cheque in question. This Court finds that the stand taken by the accused in the learned trial court was that the accused no.1 issued a blank cheque and misused by the complainant. Without entering into the merits of the controversy, since that Crl.MC 8187/2006 6 of 7 will ultimately be decided by the learned trial court, this fact is being noticed to the limited extent of examining the stand of the petitioner that she was nowhere involved in the issuance of the cheque in question. 11. On a perusal of the records and the complaint in particular, this Court finds that the complaint filed by the complainant does not prima facie make out a case against the petitioner here under Section 138 of the Act. No material has been brought out to substantiate the case under Section 138 of the Act against the petitioner. 12. For the above reasons, the petition is allowed and the complaint no. 431/1/06 under Section 138 of the Act in so far as the petitioner is concerned is hereby quashed. 13. The petition stands disposed of. 14. A copy of order be given dasti to learned counsel for the parties. S. MURALIDHAR, J JANUARY 08, 2008 rk Crl.MC 8187/2006 7 of 7