Civil Procedure Code (CPC)

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Rajesh Agarwal   18 May 2021

138 N. I. Act

Accused took loan and issued one Promissory note and gave Complainant a signed cheque. As the cheque in question was from the Joint Account and his wife , both of them signed the cheque. The demand Notice sent to accused and his wife , complain was also filed against both of them. Is it correct to make both of them accused especially when husband only took loan.


 9 Replies

yasaswi gomes (.)     18 May 2021

Unimportant under humanitarian views. Ppl often are financially suffering due to low economy, it could happen to anyone. Who ever took the money by hand is responsible.

Advocate Bhartesh goyal (advocate)     18 May 2021

Husband took loan and against such loan a cheque issued by husband and wife from their joint account , wife signed the cheque by accepting the liability of repayment of loan took by her husband so both husband and wife are liable for consequences of offence of sec 138 of N.I.Act.

2 Like

yasaswi gomes (.)     18 May 2021

Maybe law cannot be taken for granted and this is an example.

G.L.N. Prasad (Retired employee.)     19 May 2021

When a complaint was filed after issuing notice through a competent advocate, trust the competencies of your advocate.  There is no second opinion that as the loan is for the benefit of the family, the wife can also be treated as co obligate.

SIVARAMAPRASAD KAPPAGANTU (Retired Manager)     19 May 2021

The Joint signatory signed the cheque with full knowledge for which the cheque was issued. Maybe at a later date, it can be argued that she did not receive any consideration and hence no action can be brought upon her. Then the purpose of the loan comes into the picture. In any case, whatever the Husband does ie business or personal usage, the loan proceeds are used for family also and thereby impleading the Wife also as she is one of the signatories of the cheque although she did not in fact signed the pro note.

 

Merely filing a case under Section 138 shall not get the recovery of the amount automatically as the case is criminal in nature. Side by side a civil case too should be filed for recovery of the loan amount which has become overdue and/or recalled as per norms and the borrower failed to make good the amount as per the terms of the loan.

P. Venu (Advocate)     19 May 2021

The provisions of NI 138 presumes the cheque had been issued in discharge of a valid debt. Admittedly, in the present case, it is the husband who owes the debt, not the wife. The wife had signed the cheque in technical requirement of the account being joint. As such, in my understanding,  it is a legal overreach to canvass that the wife is jointly liable. 

Yes, there is the presumption under Section 139. But this presumption is rebuttable and in the  instant case, as regards to the wife's liability, is easily rebuttable on the face of the facts disclosed by the complainant himself.

Please note that action  under NI 138 is a criminal proceedings and the complainant is required to prove his case beyond reasonable doubt where as the accused need to establish his/her defence to the extent of preponderance of probability.

Adv. Sagar Verma (Lawyer)     19 May 2021

Both are liable for the act, as the cheque was issued jointly. The Hon'ble Court will decide further who is the culprit, but as far as filing your complaint is concerned. Both of them should be the accused in your case.

Regards,
Adv. Sagar Verma
advsagarverma.official@gmail.com

T. Kalaiselvan, Advocate (Advocate)     20 May 2021

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.

It is trite that if a cheque is issued by a person in discharge of the liability of another person and if the cheque is dishonoured, the person, who issued the cheque can be prosecuted under Section 138 of the NI Act. 

A person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. 

You have stated that both have signed the cheque towards discharge of loan amount availed by husband,  hence both can be prosecuted.

Dr J C Vashista (Lawyer)     20 May 2021

Both of them are to be impleaded as respondent / accused in the complaint case u/s 138 of the N I Act, 1881.

You are a party to the complaint or counsel, what is your locus standi / concern ?


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