Case Note & Summary
The applicant, A.C. Narayanan, was impleaded as an accused in complaints filed by respondent no.2 for offences punishable under Section 138 of the Negotiable Instruments Act, 1881. The complaints pertained to cheques issued by the wife of the applicant in favour of the respondent, which were dishonoured. The applicant challenged the proceedings and the order dated 7th October 2015 passed by the learned Metropolitan Magistrate, 58th Court, Bandra, Mumbai, by invoking the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure, 1973. The core legal issue was whether the husband could be vicariously liable for the dishonour of cheques issued by his wife in discharge of her own liability. The court analysed the provisions of Section 138 of the NI Act and observed that the Act does not provide for any vicarious liability. The liability under Section 138 arises only against the drawer of the cheque who issued it in discharge of a legally enforceable debt or liability. In the present case, the cheques were issued by the wife, and there was no allegation that the husband had issued the cheques or that he was liable for the debt. The court held that the husband cannot be prosecuted merely because he is the husband of the complainant. The court also noted that the complaints were filed in 2002 and the proceedings were pending for a long time, causing harassment to the applicant. Accordingly, the court quashed the proceedings against the applicant in all the complaints.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Vicarious Liability - The court considered whether the husband of the complainant can be prosecuted for dishonour of cheques issued by the wife in discharge of her own liability - Held that there is no vicarious liability under Section 138 of the NI Act, and the husband cannot be prosecuted merely because he is the husband of the complainant (Paras 1-10).
Issue of Consideration
Whether the husband of the complainant can be prosecuted under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques issued by the wife in discharge of her own liability, in the absence of any vicarious liability under the Act.
Final Decision
The court allowed the applications and quashed the proceedings against the applicant in all the complaints. The order dated 7th October 2015 passed by the learned Metropolitan Magistrate, 58th Court, Bandra, Mumbai, was set aside.
Law Points
- Vicarious liability under Section 138 NI Act
- Dishonour of cheque
- Liability of spouse
- Quashing of criminal proceedings
- Inherent powers under Section 482 CrPC
Case Details
2017 LawText (BOM) (10) 59
Criminal Application No.464 of 2016 with Criminal Application No.1072 of 2016, Criminal Application No.465 of 2016 with Criminal Application No.1071 of 2016, Criminal Application No.466 of 2016 with Criminal Application No.1070 of 2016
Mr. Mihir D. Gheewala with Ishan Jain with Santosh Pawar for Applicant in APL Nos.464/2016, 465/2016 and 466/2016; Mr. Mahendra Swar i/by Tanvir A.H. Shaikh for Applicant in APPP No.1072 of 2016; Mr. S.A. Jabar i/by Tanvir A.H. Shaikh for Applicant in APPP No.1070 of 2016; Mr. Y.M. Nakhwa, APP for State in all matters
The State of Maharashtra and Shaikh Abdul Jabbar / Smt. Deoreen Shaikh / Alfred Aguiar (since deceased) substituted by Smt. Deoreen Shaikh
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Nature of Litigation
Criminal applications under Section 482 CrPC seeking quashing of proceedings under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The applicant sought quashing of the complaints and the order dated 7th October 2015 passed by the learned Metropolitan Magistrate, 58th Court, Bandra, Mumbai.
Filing Reason
The applicant was impleaded as an accused in complaints filed by respondent no.2 for dishonour of cheques issued by the applicant's wife.
Previous Decisions
The learned Metropolitan Magistrate passed an order on 7th October 2015, which was challenged by the applicant.
Issues
Whether the husband of the complainant can be prosecuted under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques issued by the wife in discharge of her own liability?
Whether the proceedings against the applicant are liable to be quashed under Section 482 of the Code of Criminal Procedure, 1973?
Submissions/Arguments
The applicant argued that he is not the drawer of the cheques and there is no vicarious liability under Section 138 of the NI Act.
The respondent contended that the applicant is liable as he is the husband of the complainant and the cheques were issued in discharge of a liability.
Ratio Decidendi
There is no vicarious liability under Section 138 of the Negotiable Instruments Act, 1881. The husband of the complainant cannot be prosecuted for dishonour of cheques issued by the wife in discharge of her own liability, as the liability under Section 138 arises only against the drawer of the cheque.
Judgment Excerpts
The applicant in all these applications has been impleaded as an accused in the complaint filed by respondent no.2 for offence punishable under Section 138 of Negotiable Instruments Act, 1881.
The court held that there is no vicarious liability under Section 138 of the NI Act, and the husband cannot be prosecuted merely because he is the husband of the complainant.
Procedural History
The complaints were filed in 2002 under Section 138 of the Negotiable Instruments Act, 1881. The learned Metropolitan Magistrate passed an order on 7th October 2015. The applicant filed criminal applications under Section 482 of the Code of Criminal Procedure, 1973, challenging the proceedings and the order. The court reserved judgment on 31st August 2017 and pronounced it on 13th October 2017.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
