Smt. Thara K. Pathange vs Srichand Tarachand

H.N. Nagamohan Das, J.—In these petitions the petitioner has prayed for quashing the proceedings in C.C. 1771/2012 and C.C. 1316/2012 pending on the file of IV Addl. C.J. & JMFC, Mysore for the offences punishable u/s 138 N.I. Act. Petitioner and her husband P.J. Kumar Rao entered into an agreement of sale with the respondent on 30.09.2000 agreeing to sell immovable property and acknowledged advance amount of Rs. 17.00 lakhs. Since petitioner and her husband failed to perform their part of contract under the agreement of sale, respondent filed a civil suit in OS No. 624/2009 for decree of specific performance of agreement of sale. During the pendency of civil suit the property involved in the case came to be sold by way of public auction by the State Bank of Mysore, Gokulam Branch, Mysore. In the changed circumstances, petitioner and her husband entered into a settlement agreement with the respondent on 19.10.2011 wherein they have jointly agreed to refund the advance amount and compensation in all a sum of Rs. 90,00,000/-. In terms of this settlement agreement petitioner and her husband issued five post dated cheques from their joint account. On presentation the cheques came to be dishonoured. The same was intimated to the petitioner and her husband and thereafter a private complaint came to be filed before the trial Court. The trial Court registered the case, took cognizance and issued summons. Petitioner and her husband entered appearance and contested the proceedings. The evidence on the side of complainant came to be closed and when the matter was set down for recording Section 313 Cr.P.C. statement, petitioner approached this court seeking quashing of the proceedings on the ground that she is not the signatory to the cheque and as such she is not proper and necessary party before the trial Court.

Heard arguments on both the side and perused the entire petition papers.

A reading of Section 133 of NI Act manifestly makes it clear that respondent complainant has to prove the liability of the petitioner and her husband towards which cheques are issued. The liability of petitioner and her husband arises out of an agreement of sale dated 30.09.2000 and the subsequent settlement agreement dated 19.10.2011. In order to prove the liability, the presence of petitioner is necessary before the trial Court. Secondly, it is not in dispute that the cheques signed by the petitioner and her husband are drawn from their joint account. Whether there is agreement between the petitioner and her husband that the liability of one person in operating the joint account will bind the other person is a matter of evidence that is to be examined by the trial Court. At this stage the version of the petitioner that she is not bound by the liability of her husband for issuing cheque cannot be accepted and the same is required to put to test by providing an opportunity to other side before the trial Court. Therefore, at the instance of petitioner, the proceedings cannot be quashed merely on the ground that she is not a signatory to the cheques in question. The two judgments relied on by the learned counsel for the petitioner reported in Vijayan Vs. State of Kerala, of Kerala High Court and R. Priyadharshini Vs. LIC Housing Finance Ltd., of Madras High Court have no application to the facts on hand. In the circumstances, the petitions are hereby dismissed. All contentions are left open. The trial Court is directed to expedite the matter and to dispose the entire case as expeditiously as possible.