ALKA KHANDU AVHAD Vs. AMAR SYAMPRASAD MISHRA

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 21.08.2019 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 2595 of 2019, by which the High Court has dismissed the said application preferred by the appellant herein under Article 226 of the Constitution of India and has refused to quash the complaint filed against the appellant for the offences punishable under Section 138 r/w Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act'), the original accused No. 2 has preferred the present appeal.

(2.) That respondent No. 1 herein has filed a criminal complaint against the appellant and her husband for the offences punishable under Section 138 r/w Section 141 of the NI Act in the Court of the learned Metropolitan Magistrate, 43rd Court at Borivali, Mumbai, which has been numbered as C.C. No. 2802/SS/2016. That respondent No. 1 - original complaint (hereinafter referred to as 'the original complainant') is a practicing advocate and partner in a solicitor firm in Mumbai. As per the case of the complainant, both the accused who are husband and wife, approached the original complaint in a legal matter. That the original complainant assisted accused Nos. 1 and 2 in preparing replies and notice of motion, conference, coordinating with counsel, filing Vakalatnamas and appearing through advocates' office and also as counsel in Summary Suit. That the original complainant raised a professional bill for the legal work done by him to represent accused Nos. 1 and 2 in the legal proceedings. That, thereafter, original accused No. 1 - husband of the appellant herein handed over to the complainant a postdated cheque dated 15.03.2016 bearing No.227050 drawn on Union Bank of India for Rs.8,62,000/-. The said cheque was presented for encashment and the same came to be returned unpaid with the endorsement "funds insufficient". That, thereafter, the original complainant served a legal notice dated 21.05.2016 calling upon the accused to pay the amount of Rs.8,62,000/- within 15 days from the date of receipt of the said notice. That the said notice was duly served upon the accused, however, the accused neither replied the said notice nor made the payment of the aforesaid dishonoured cheque. Therefore, the complainant filed a complaint against both the accused - husband and wife for the offence punishable under Section 138 of the NI Act. That the learned Metropolitan Magistrate, 43rd Court, Borivali, Mumbai directed to issue process against both the accused for the offence punishable under Sections 138 r/w Section 141 of the NI Act.

(3.) Learned counsel appearing on behalf of the appellant has vehemently submitted that the dishonoured cheque was issued by her husband and not the appellant and even the account in question was not a joint account and that the appellant was neither the signatory to the cheque nor the cheque was drawn from the bank account of the appellant and therefore the appellant cannot be prosecuted for the offence punishable under Section 138 of the NI Act. It is vehemently submitted that the ingredients of Section 138 of the NI Act are not satisfied, and therefore, the High Court ought to have quashed the criminal complaint against the appellant.