Gujarat High Court: A Bench comprising of J.B. Pardiwala, J. has directed quashing of criminal proceedings against the applicant and co-accused husband, for dishonour of cheque under Section 138 of the Negotiable Instruments Act. The Applicant filed an application under Section 482 of the CrPC, invoking inherent powers of the High Court to quash the criminal proceedings against him, that were underway before the Metropolitan Magistrate, for dishonour of a cheque which was signed by his wife.
The Court observed that it is indisputable that it is only the wife of the applicant who had signed the dishonoured cheque, not the applicant. The Court followed the Supreme Court Judgment in Aparna A. Shah v. Sheth Developers Pvt. Ltd., 2013 8 SCC 71 in which the Supreme Court interpreted Sections 138 and 141 of the NI Act and after considering a catena of the decided cases, reiterated that it is only the drawer of the cheque who can be made liable for penal action under Section 138. The Court stated that it is a settled law that strict interpretation is required to be given to penal statutes. Further, there is no vicarious liability in criminal law unless the statute takes that also within its fold. The Supreme Court in the above case held that under Section 138, in case of issuance of cheques from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. In view of the above Supreme Court judgment, the High Court quashed the proceedings against the applicant before the Metropolitan Magistrate.[Harshad Manubhai Malaviya v. State of Gujarat, 2017 SCC OnLine Guj 372, decided on 04/04/2017]
