1 (crim wp 1588 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1588 OF 2010 WITH CRIMINAL WRIT PETITION NO.1589 OF 2010 WITH CRIMINAL WRIT PETITION NO.1590 OF 2010 WITH CRIMINAL WRIT PETITION NO.1591 OF 2010 WITH CRIMINAL WRIT PETITION NO.2746 OF 2010 Shainamma Sabu ...Petitioner Vs. Mr.Jojimon Philip Joseph and Ors. ...Respondents ----- Mr.Dundappa B. Patil and Mrs.Meenakshi D.Patil for Petitioner Mr.S.K.Jain a/w.Mr.Rajesh Thakur for Respondent No.1 Mrs.M.R.Tidake -APP for the State ----- CORAM: V.M. KANADE J. DATED: 19TH OCTOBER, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioner, the learned Counsel appearing on behalf of the Respondent No.1 and the learned APP for the State. 2. The Petitioner in these group of petitions is 2 (crim wp 1588 of 2010 challenging the order of issuance of process passed by the JMFC, Kalyan on a complaint being filed by the Respondent No.1 for the offence punishable under section 138 of the Negotiable Instruments Act. 3. Brief facts of the case are that the husband of the Petitioner who is accused no.1 issued 20 postdated cheques to the complainant which were admittedly signed by him and were drawn on a account, which was jointly held by the Petitioner and the said Accused No.1. Upon the dishonour of the said cheques, a complaint was filed against the Petitioner as well as against her husband -accused no.1 who had signed the said 20 cheques. 4. The learned counsel appearing on behalf of the Petitioner submitted that since admittedly the Petitioner was not the drawer of the said cheques, she could not be made vicariously liable for issuance of the said cheques by her husband-accused no.1 though 3 (crim wp 1588 of 2010 the said cheques were drawn on a joint account held by the Petitioner and her husband. In support of the said submission, he has relied on the judgments of various High Courts and Apex Court, viz:- (1) Judgment of the Madras High Court in the case of R.Priyadharshini vs. LIC Housing Finance Limited [2005 (2) DCR 459] (2) Judgment of the Punjab and Haryana High Court in the case of Smt. Bandeep Kaur vs. S.Avneet Singh decided on December 19,2007 (3) Judgment of Kerala High Court in the case of Devi vs. Haridas [2005(1) DCR 151] (4) Judgment of this Court in the case of Bipin J. Shah vs. Smt.Niru B. Mehta [2001(2)Mh.L.J. Page 632] (5) Judgment of the Apex Court in the case of Jugesh Sehgal vs. Shamsher Singh Gogi [2009 (14) SCC 683] He submitted that the provisions of section 138 of the Negotiable Instruments Act are not attracted since the cheques were not signed by the Petitioner herein 4 (crim wp 1588 of 2010 and it was drawn by her husband-accused No.1 from the joint account of the Petitioner and her husband- accused No.1. It was then submitted that in the present case the provisions of section 141 of the Negotiable Instruments Act are not attracted since the dispute was between the Complainant and the Accused no.1. It was then submitted that the only averment in the complaint, so far as the Petitioner herein is concerned, is in paragraph 3 of the complaint, wherein it is mentioned that the accused no.1 is the joint account holder and, therefore, equally liable and responsible for the consequences of dishonour of cheque. 5. On the other hand, the learned counsel appearing on behalf of the Respondent No.1- Original Complainant submitted that the plea has been recorded and affidavit in lieu of examination-in-chief was also filed in some of the cases. He, therefore, submitted that since the trial had begun, this Court should not 5 (crim wp 1588 of 2010 interfere with the order of issuance of process. In support of the said submission, he relied on a judgment and order of this Court dated 24th September, 2010 in Criminal Writ Petition No. 1822 of 2010 with Criminal Writ Petition No.1823 of 2010. He submitted that in these cases, the facts were identical and this Court had declined to interfere with the order of issuance of process since the trial had begun. It was strenuously urged by the learned counsel for the Respondent No.1 that in fact, reliance placed by the learned counsel for the Petitioner in the case of Jugesh Sehgal vs. Shamsher Singh Gogi (supra) wherein the Apex Court Court in paragraphs 9,10, 11 has made observations which clearly show that if a cheque was drawn from an account maintained by the accused, he would be liable under the provisions of section 138 of the Negotiable Instruments Act. 6. After having heard both the learned counsel at length, I am of the view that there is much substance 6 (crim wp 1588 of 2010 in the submissions made by the learned counsel for the Petitioner. Perusal of the provisions of section 138 of the Negotiable Instruments Act, clearly reveal that the only drawer of the cheque is made liable if the cheque is dishonoured and in the case of a partnership firm and the joint stock company, the other persons can be made vicariously liable only if specific averment is made in the complaint specifying their role and alleging that they are in-charge of the day-to-day affairs of the company and responsible for the conduct of its affairs. In the present case, it is an admitted position that in the complaint it is not alleged that the Petitioner is a partner of a partnership firm or a director of a joint stock company and all the cheques were issued by the accused no.1 though from the joint account of the Petitioner and the accused no.1. Therefore, taking into consideration the said provisions of section 138 r/w. 141 of the Negotiable Instruments Act, a joint account holder who has not signed the cheque or has not drawn 7 (crim wp 1588 of 2010 the cheque, cannot be made liable. The Madras High Court in the case of R.Priyadharshini vs. LIC Housing Finance Limited (supra) also has held that the liability under section 138 of the Negotiable Instruments Act cannot be fastened upon a person who has not signed the cheque. The same view is taken by the Kerala High Court in the case of Devi vs. Haridas (supra) and by the Punjab and Haryana High Court in the case of Smt. Bandeep Kaur vs. S.Avneet Singh (supra). In all the three cases, the cheques were issued by the drawer from the joint account of the Petitioner and her husband. The same view has been taken by this Court in the case of Bipin J. Shah vs. Smt.Niru B. Mehta (supra). Though reliance has been placed by the learned counsel for the Petitioner in the judgment of the Apex Court in the case of Jugesh Sehgal vs. Shamsher Singh Gogi (supra), in my view, the facts of the said case are not similar to the facts of the present case and, therefore, the observation made by the Apex Court in the said 8 (crim wp 1588 of 2010 judgment will not apply. 7. The learned counsel for the Respondent has relied on a judgment of this Court in the case of Ashish Chandrakant Shah vs. M/s. Sheth Developers (supra), it was strenuously urged that since plea was recorded, the affidavit in lieu of examination-in- chief has been filed and the trial had begun, this Court should decline to interfere with the order of issuance of process. 8. In my view, the facts of the said case were clearly different. In the said case the plea of the Petitioner was recorded on 8.10.2009. The affidavit in lieu of examination in chief has been filed on 19.11.2009 and the Learned Magistrate had passed an order on the same day, admitting the documents which were produced by the Complainant by exhibiting them. The accused had filed an application challenging the said order on the ground that the documents were not 9 (crim wp 1588 of 2010 admissible in evidence and had not been properly proved. The Learned Magistrate had rejected the application filed by the Accused and the trial actually had begun and the accused had filed the application only at a belated stage while challenging the order of rejecting the application the accused had also challenged the order of issuance of process. Under these circumstances, this Court has held that since the trial had begun, it would not be open for the Petitioner to challenge the order of issuance of process. In the present case only and in one case the affidavit in lieu of examination in chief has been filed and that too during the pendency of the revision application in the Sessions Court. It is no doubt true that normally this Court is slow in interfering with the order of issuance of process once the plea is recorded. However, that is not an absolute rule and discretion is vested in this Court to interfere on application for quashing the order of issuance of process even after the plea of the accused is recorded 10 (crim wp 1588 of 2010 if it is satisfied that no case is made out against the accused and continuation of the proceeding against the accused would be an abuse to the process of the court and would entail miscarriage of justice. 9. In the result, the writ petitions are allowed. The order of issuance of process passed by the Learned J.M.F.C., Kalyan, in all these cases is quashed and set aside so far as the Petitioner is concerned. The trial against the remaining accused, however, is expedited. The Trial Court shall dispose of the criminal case as expeditiously as possible and, if any case, within a period of six months. (V.M. KANADE J.)