1 ( 2025:HHC:1375 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No.848 of 2024 Date of Decision : 07.01.2025 Seema Sharda …… Petitioner Versus Shakti Cholia ……Respondent Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 For the petitioner : Mr. Sunil Mohan Goel, Senior Advocate with Mr. Vipul Sharda, Advocate. For the respondent : Mr. Prantap Sharma, Advocate. Bipin Chander Negi, Judge (oral) The present petitioner has been arrayed as accused No.2 before the trial Court in a complaint filed under Section 138 of the Negotiable Instruments Act, bearing Registration No.272 of 2024, titled Shakti Cholia vs. Man Mohan Sharda and another, pending adjudication before the Court of learned Judicial Magistrate First Class, Court No.II, Una, District Una, Himachal Pradesh. 2. The respondent, herein, is the complainant before the trial Court. Admittedly, in the case at hand, the dishonoured cheque was drawn on a joint account held by both, Man Mohan Sharda- accused No.1 and Smt. Seema Sharda-accused No.2, before the trial Court. The later 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 ( 2025:HHC:1375 ) being the present petitioner. However, the dishonoured cheque was signed only by Man Mohan Sharda-accused No.1. The same is evident from the dishonoured cheque, which has been placed on record at Page- 21 of the paper book. 3. In the aforesaid facts and attending circumstances of the present case, it is contended by learned counsel for the petitioner/ accused No.2 that since she had neither drawn nor issued the cheque, in question, merely on account of the fact that the cheque was drawn on a joint account held by her along with her husband, she cannot be arrayed as an accused in such proceedings. In support of his contention, learned counsel for the petitioner has drawn attention of this Court to the decision of the Hon’ble Apex Court in, Aparna A. Shah vs. Sheth Developers Private Limited and another, 2013(8) SCC 71. The relevant extract, whereof, is being reproduced herein below for ready reference:- “27. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in- chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 28. We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the 3 ( 2025:HHC:1375 ) cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case “except in case of Section 141 of the N.I. Act” be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage.” 4. Learned counsel for the respondent/complainant fairly conceded to the aforesaid legal position. In view thereof, present petition is allowed. The name of present petitioner, i.e., Smt. Seema Sharda-accused No.2 before the trial Court, is ordered to be deleted from the array of the respondents in the complaint filed under Section 138 of the Negotiable Instruments Act, bearing Registration No.272 of 2024, titled Shakti Cholia 4 ( 2025:HHC:1375 ) vs. Man Mohan Sharda and another, pending adjudication before the Court of learned Judicial Magistrate First Class, Court No.II, Una, District Una, Himachal Pradesh. 5. As a consequence whereof, the proceedings qua petitioner/accused No.2 before the trial Court, are quashed. The process issued against the present petitioner/accused No.2 before the trial Court is also quashed. 6. In view of above terms, present petition stands disposed of, so also the pending miscellaneous application(s), if any. (Bipin Chander Negi) January 07, 2025 (KS) Judge