A.N. Venugopal Gowda, J.This petition was filed to quash the proceedings in C.C. No. 5254/2012, as against the petitioner, pending on the file of the XVI Additional Chief Metropolitan Magistrate, Bengaluru. The petitioner is accused No. 2. The said case was filed by the respondent, against the petitioner and her husband Dr. Vishwas Shetty, who figures as the first accused. The case was instituted alleging commission of an offence under Section 138 of Negotiable Instruments Act, 1881 (for short the Act).

2. Drawer of the cheque, which is the subject matter of C.C. No. 5254/2012 is Dr. Vishwas Shetty. The cheque was issued in respect of a joint account of both accused. Despite the cheque having been drawn only by the first accused, petitioner having been included as the second accused, cognizance having been taken and summons having been issued, this petition was filed under Section 482 Cr.P.C., for grant of the relief, mentioned supra.

3. Sri M.T. Nanaiah, learned Senior Advocate, contended that though the cheque was drawn on a joint account to be operated as Either or Survivor, as the petitioner was not the drawer of the cheque and in view of Section 7 of the Act, defining the word "drawer", as the maker of a bill of exchange or cheque, no liability under Section 138 of the Act can be fastened on the petitioner. In this connection, reliance was placed upon the decision in Mrs. Aparna A. Shah Vs. Sheth Developers Pvt. Ltd. and Another, (2013) 5 ABR 119 [LQ/SC/2013/638] : (2013) 10 AD 505 : AIR 2013 SC 3210 [LQ/SC/2013/638] : (2013) 3 BC 491 : (2014) 118 CLA 366 [LQ/SC/2013/638] : (2013) 3 CompLJ 449 [LQ/SC/2013/638] : (2013) CriLJ 3743 [LQ/SC/2013/638] : (2013) 3 JCC 169 [LQ/SC/2013/638] : (2013) 9 JT 258 : (2013) 3 RCR(Civil) 680 : (2013) 3 RCR(Criminal) 686 : (2013) 8 SCALE 140 [LQ/SC/2013/638] : (2013) 8 SCC 71 [LQ/SC/2013/638] .

4. Per contra, Sri Kashyap N. Naik, learned advocate, contended that both the accused having joint account and, as any one could issue the cheque, the petitioner and her husband being an association of individuals, as envisaged under Section 141 of the Act, learned Magistrate is justified in taking cognizance and issuing process. He submitted that in the facts and circumstances of the case, since the petitioner should face trial, power under Section 482 Cr.P.C. cannot be exercised.

5. Considered the rival contentions and perused copies of the complaint and documents produced along with it.

6. In Jugesh Sehgal Vs. Shamsher Singh Gogi, (2009) CLT 1451 : (2009) 9 JT 292 : (2009) 9 SCALE 455 [LQ/SC/2009/1439] : (2009) 14 SCC 683 [LQ/SC/2009/1439] : (2009) 10 SCR 857 [LQ/SC/2009/1439] , the complainant had filed FIR against the accused for the offences under Sections 420, 467, 468, 471 and 406 IPC. Considering the six necessary ingredients which are required to be fulfilled, to attract the provisions of Section 138 of the Act, Apex Court has held, that there is little doubt that the very first ingredient of Section 138 being not satisfied, that the case for the offence under Section 138 of the Act can be held as having been committed.

7. In the instant case, complainant transferred through RTGS, an amount of Rs. 20,00,000/-, to the HDFC Bank Account, standing in the name of the first accused and that the first accused signed and issued post-dated cheque for Rs. 23,00,000/-, in discharge of the liability. The cheque was drawn in the joint account of both accused. The cheque having been returned dishonoured, after issuing demand notice, complaint was filed against both accused.

8. In Aparna A. Shah (supra), Apex Court, having referred to some of the decisions rendered by the various High Courts, on the issue, has held as follows:

"27. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains the name of the appellant and her husband, the fact remains that her husband alone had put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in- chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque.

28. We also hold that under Section 138 of the NI Act, in case of issuance of cheque 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. The said principle is an exception to Section 141 of the NI Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as arm-twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to the dishonour of a cheque can, in no case "except in case of Section 141 of the NI Act" be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him."

9. There being no dispute that the petitioner has neither signed nor issued the cheque in question, in favour of the respondent herein, she cannot be held liable for the cheque in question, which was drawn by her husband, since, the drawer of a cheque from a joint account of Either or Survivor, draws the cheque only for himself and the other drawer, like the petitioner, cannot be made liable for the offence under Section 138 of the Act. Thus, no liability can be fastened upon the petitioner and the proceeding instituted against her being not maintainable, is liable to be quashed i.e., insofar as accused No. 2 is concerned and, not against her husband/accused No. 1. The instant petition is covered by the two decisions of the Apex Court, noticed supra.

In the result, petition is allowed and C.C. No. 5254/2012, on the file of the XVI Additional Chief Metropolitan Magistrate, Bengaluru, insofar as accused No. 2 is concerned, is quashed. Learned Magistrate shall proceed further and decide the case as against accused No. 1, in accordance with law.