Case Note & Summary
The petitioner, Alka Khandu Avhad, wife of Khandu Kacharu Avhad, challenged an order dated 23/02/2018 passed by the learned Metropolitan Magistrate, 43rd Court at Borivali, Mumbai, issuing process against her and her husband in C.C. No.2802/SS/2016 under Section 138 of the Negotiable Instruments Act, 1881. The respondent-complainant, an advocate, alleged that the petitioner and her husband had engaged his legal services for various matters between June 2015 and April 2016, and that a professional bill remained unpaid. A cheque issued by the husband was dishonoured. The complainant sought to implicate the wife on the ground that she was a beneficiary of the legal services and had participated in email communications. The High Court examined the complaint and found that there was no specific allegation that the petitioner was in charge of or responsible for the conduct of the business, or that she had issued the cheque. The court held that mere relationship as spouse or general participation in communications does not attract vicarious liability under Section 141 of the NI Act. The court quashed the process against the petitioner, allowing the writ petition, while clarifying that proceedings against the husband may continue.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Vicarious Liability - Section 138 read with Section 141 - The court examined whether a spouse can be held vicariously liable for dishonour of a cheque issued by the other spouse in discharge of a professional fee debt, in the absence of specific allegations of involvement in the business or issuance of the cheque. Held that mere relationship as spouse is insufficient to attract vicarious liability; there must be specific averments that the accused was in charge of and responsible for the conduct of the business at the time the offence was committed (Paras 7-12). B) Criminal Procedure Code - Quashing of Criminal Proceedings - Inherent Powers - Section 482 - The court considered the scope of its inherent powers to quash proceedings where the complaint does not disclose any offence against the petitioner. Held that where the allegations in the complaint, even if taken at face value, do not constitute an offence against the petitioner, the High Court may exercise its inherent powers to prevent abuse of process (Paras 13-15).
Issue of Consideration
Whether the process issued against the petitioner (wife of the main accused) under Section 138 of the Negotiable Instruments Act, 1881 can be sustained in the absence of any specific allegation that she was responsible for the conduct of the business or that she issued the cheque.
Final Decision
The High Court allowed the writ petition and quashed the process issued against the petitioner (Alka Khandu Avhad) in C.C. No.2802/SS/2016. The court held that the complaint does not disclose any offence against the petitioner under Section 138 read with Section 141 of the NI Act. The proceedings against the husband (co-accused No.1) may continue.
Law Points
- Vicarious liability under Section 138 NI Act requires specific role in issuance of cheque
- Section 138 Negotiable Instruments Act
- 1881
- Section 141 Negotiable Instruments Act
- Criminal Procedure Code
- 1973 Section 482
