JUDGMENT

A.N. Jindal, J.

1. The provisions of Section 482 of the Code of Criminal Procedure Code (for short Cr.P.C.) have been invoked for quashing of the order dated 28.3.2007 passed by Judicial Magistrate, 1st Class, Jalandhar qua Ban-deep Kaur-Petitioner.

2. In brief, the allegations, as contained in the complaint, are that the petitioner and her husband (Pawandeep Singh) received a friendly loan of Rs. 7,50,000/- from the respondent (Avneet Singh) and, thereafter, in order to discharge the said advance, Pawandeep Singh Graver issued various cheques with the assurance that all the said cheques will be duly honoured, if presented in the drawer bank. Out of these, one cheque No. 163599 dated 1.2.2007 for a sum of Rs. 50,000/- drawn on HDFC Bank Limited, Civil Lines, Jalandhar issued from the joint account of the petitioner and her husband Pawandeep Singh, under the signatures of Pawandeep Singh Grover (accused No. 1 in the complaint), was presented for encashment, the same was dishonored by the Banker of the accused vide memo dated 3.2.2007 with the remarks, Funds Insufficient. Consequently, after completing the formalities, a complaint had been preferred against both the accused (the petitioner and her husband).

3. The Trial Court vide impugned order dated 28.3.2007 (Annexure P-1) issued process of summoning against them to face trial. Now, the petitioner i.e. accused No. 2 has come up for quashing of the said proceedings on the ground that neither she obtained the loan, nor she is signatory of the cheque and, therefore, provisions of Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) could not be invoked against her. She has further submitted that mere having a joint bank account in the HDFC Bank with her husband, is hardly sufficient to fasten her with the liability.

4. On notice of motion, respondent-complainant (hereinafter referred to as the respondent) was duly served, but he has not put in appearance.

Section 138 of the Act refers to the payee or holder in due course of the cheque. It indicates that after the dishonour of the cheque, the drawer of the same could be brought to the dock for the fault committed by him. Section 138 of the Act reads as under:

138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of drat account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from me date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in the due course of the cheque, as me case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to me drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

5. Thus, on perusal of the above, it is clear that it is me drawer of the said cheque, if he fails to make the payment on me receipt of the said notice, then the provisions of Section 138 of the Act could be attracted against him only. The drawer of the cheque has been defined in Section 7 of the Act, which reads as under:

7. "Drawer", "drawee" - The maker of a bill of exchange or cheque is called the "drawer", the person thereby directed to pay is called the "drawee".

6. Though, the cheque was drawn to a joint bank account, which is to be operated by anyone i.e., the petitioner or by her husband, but the controversial document is the cheque, the liability regarding dishonoring of which can be fastened on the drawer of it. In other words, it could well be explained that the cheque was issued by Pawandeep Singh, non-petitioner in discharge of his liability and not by the petitioner. The petitioner neither had any dealings with the complainant, nor she is the drawer. Mere fact that the petitioner happens to be the spouse of the first accused, is hardly sufficient to condemn her as the co-accused with him. On the perusal of the penal provisions as contained under the Act, it transpires that there is no such provision regarding taking cognizance against a person other than the "drawer" of the cheque, subject to the conditions, as mentioned in proviso to Section 138 of the Act and the other provisions mentioned in Chapter XVII of the Act.

7. If the person committing the offence under Section 138 of the Act is a company, then the person in charge of the company as well as the company itself shall be deemed guilty of the offence as provided under Section 141 of the Act. It is settled principle of law that penal provisions should be constructed strictly and the emphasis is on the words, "such person". It is manifest from the expression of the words used in Section 138 of the Act "such person shall be deemed to have committed the offence" related to the person who has drawn the cheque is returned unpaid on account of the conditions mentioned under Section 138 of the Act, such person alone is liable but not other except the contingencies mentioned under Section 141 of the Act. I find support to this view of mine from the decisions in cases G. Surya Prabhavathi v. Nekkanti Subrahtnanyeswara Rao 1999(1) R.C.R. (Cri.) 788 (A.P.), Devi v. Haridas 2004(4) R.C.R. 641 (Ker) and R. Priyadharshini (A-2) v. LIC Housing Finance Ltd. 2005(3) R.C.R. (Cri.) 630 (Mad).

8. For the reasons recorded above, it would not be unsafe to observe that the petitioner is not liable for the cheque drawn by her husband from a joint account relating 10 both of them. She also cannot be held liable with the aid of the provisions as envisaged under Section 141 of the Act. However, accused Pawandeep Singh Grover could be saddled with culpable liability as he is the only "drawer" of the cheque.

9. Resultantly, the present petition is accepted and the proceedings qua the petitioner in complaint titled S. Avneet Singh v. S. Pawandeep Singh Grover and Anr. pending in the Court of Judicial Magistrate, 1st Class, Jalandhar stand quashed. However, the complaint qua other accused and further proceedings taken thereunder shall continue and will be taken into consideration qua accused Pawandeep Singh Grover. Copy of the order be sent to the Trial Court for intimation.