Case Details: Neeta Gupta v. Suman Anand - [2024] 161 taxmann.com 83 (HC - Delhi)
Judiciary and Counsel Details
- Manoj Kumar Ohri, J.
- Mohit Chaudhary, Adv. for the Petitioner.
- Sanjay Gupta, Adv. for the Respondent.
Facts of the Case
In the instant case, the complainant/petitioner filed a complaint against the accused/respondent under section 138 of the Negotiable Instruments Act, 1881. The complaint alleged that the accused had taken a friendly loan from the complainant and subsequently issued a cheque to the complainant, which was dishonoured upon presentation.
The accused contended that no demand notice was served to her and she even denied receipt of any summons, arguing that the complaint filed against her was not maintainable. On the contrary, the accused claimed that the complainant had refused to accept the notice.
It was noted that the issue of whether the notice was served was a matter of trial. However, the complaint case failed to address a more fundamental issue. The subject cheque, a copy of which had been placed on record, was signed only by the late husband of the accused.
High Court Held
The High Court observed that although it was conceded that the cheque was issued from a joint account, however, the subject cheque did not bear the signature of the accused.
The High Court held that for the initiation of prosecution under section 138, a prior statutory notice is mandatorily required to be given to the drawer to make good payment of the amount mentioned in the cheque. Further, only when the drawer receives a notice and fails to make payment within the time provided by the Statute, does dishonour become an offence.
The High Court, further held that the criminal complaint filed against the accused was clearly an abuse of the process of law. Therefore, an instant petition filed under section 482 of the Cr. P.C. seeking quashing of the criminal complaint filed under section 138 was to be allowed and a criminal complaint against the accused was to be quashed.
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