The High Court of Delhi has quashed a criminal complaint and a summoning order against a woman in a cheque bounce case, observing that criminal liability under Section 138 of the Negotiable Instruments Act, 1881, is strictly confined to the ‘drawer’ of the cheque.
Justice Saurabh Banerjee, while allowing the petition filed under Section 482 of the Code of Criminal Procedure, held that even in cases of joint liability, a person who is not a signatory to the cheque and does not maintain the relevant bank account cannot be prosecuted for the offence.
Background of the Case
The respondent, Anil Kumar, filed a complaint under Section 138 of the NI Act against the petitioner, Sudha Devi, and her son, Tarun Kumar. According to the complaint, the mother-son duo approached the respondent in August 2020 to sell their house due to financial hardships. The respondent allegedly paid Rs. 10,00,000 in installments between August 2020 and April 2021.
However, the petitioner later declined to sell the property. To refund the amount, the petitioner’s son issued a cheque for Rs. 10,00,000 dated September 1, 2021. When presented, the cheque was returned unpaid with the endorsement “funds insufficient.” Despite a legal notice, no payment was made, leading the respondent to file a complaint. On December 15, 2021, the Trial Court summoned both the mother and the son.
Arguments of the Parties
The petitioner’s counsel argued that the Trial Court passed the summoning order in a “mechanical manner” without appreciating that the petitioner was neither a signatory to the cheque nor was the account maintained by her. Reliance was placed on the Supreme Court judgment in Alka Khandu Avhad v. Amar Syamprasad Mishra and the Punjab and Haryana High Court ruling in Shalu Arora v. Tanu Bathla.
Conversely, the respondent’s counsel submitted that the summoning order was passed after due consideration of the material on record and required no interference.
Court’s Analysis
The High Court identified three essential ingredients to satisfy the requirements of Section 138 of the NI Act:
- The cheque must be drawn by a person from an account maintained by them.
- The cheque must be toward the discharge of a legally enforceable debt or liability.
- The cheque must be returned unpaid due to insufficient funds or exceeding the arranged amount.
Upon reviewing the facts, the Court noted that it was the respondent’s own case that the son had issued the cheque. The Court observed:
“The facts herein reveal that, admittedly, neither the cheque in issue has been drawn by the petitioner nor has it been issued from a bank account maintained by her, whether singly or jointly.”
The Court further emphasized that “The criminal liability is strictly confined to the ‘drawer’ of the cheque, which the petitioner herein is not.”
Cited Precedents
The Court relied heavily on the Supreme Court’s decision in Alka Khandu Avhad (supra), quoting:
“Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act.”
The Apex Court had further clarified that a person jointly liable for a debt cannot be prosecuted unless they are a signatory and the bank account is jointly maintained.
Decision
Finding that the petitioner had no role in the issuance or dishonor of the cheque, the High Court allowed the petition. It quashed the Criminal Complaint (CC NI Act No. 26009/2021) and the summoning order dated December 15, 2021, insofar as they pertained to Sudha Devi.
Case Details Block
- Case Title: Sudha Devi v. Anil Kumar
- Case Number: CRL.M.C. 6636/2022
- Bench: Justice Saurabh Banerjee
- Judgment Date: March 30, 2026
