Skip to main content

Blog # 4. Husband Not liable for Cheque issed by wife in personal capacity

The Hon'ble Gujarat High Court, in Harshad Manubhai Malavaiya vs State Of Gujarat, held that husband is not liable for a cheque issued by the wife in her personal capacity.



In the instant matter, Justice JB Pardiwala examined the question whether the petitioner can be made vicariously liable under Section 138 for the cheque dishonoured which were issued by his wife in personal capacity.



Relying on the Supreme Court’s judgment in the matter of M/s Aparna A Shah vs M/s Sheth Developers Pvt Ltd  and considering the language used in Section 138 and taking note of background agreement pursuant to which a cheque is issued by more than one. this court held that it is only the “drawer” of the cheque who can be made liable for the penal action under the provisions of the NI Act.



The normal rule in the cases involving criminal liability is against vicarious liability. To put it clear, no one is to be held criminally liable for an act of another.



In the above judgment, the Supreme Court held that in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person, who is a joint account holder.



In other words, only the person who signs the cheque can be prosecuted for dishonour of cheque under Section 138 of the Negotiable Instruments Act....

Link to the Judgement

Comments

Post a Comment

Popular posts from this blog

Blog # 26. Concept of Real Income under the Income Tax Act, 1961

  What is Income ? Before understanding the concept of Real Income, it shall be important to go through the the term “Income” and “Real”. Income is defined under S.2(24) of the Income Tax Act, 1961(Hereinafter referred as “the Act”). The definition as provided under the Act is an inclusive definition so as to cover up all the usual as well as unusual items, however it certainly does not define it in a way that we can be said it to be precise. The same can be understood by various Judge Made Laws. The first and the lead amongst them is a Privy Council Judgment in the case of Kamakshya Narain   Singh CIT 11 ITR 513 (PC)         Facts The assesse was a “Raja” gave mining lease and He received payments by way of royalty for coal mines leased out to various lessees. The case of the Assessee was that this royalty income received by the Assessee was nothing but the recoupment of the resources which shall be exhausted by the end of the le...
26 comments
Read more

Blog # 20. S.53A of the Transfer of Property Act, 1882 and Related Laws

Section 53A of the Transfer of Property Act. 1882 is as under :- “53A. Part performance. – Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any pat thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that [***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons ...
11 comments
Read more

Blog # 28. Principles of Natural Justice In Indian Constitution

In The Constitution of India, nowhere the expression Natural Justice is used. However, golden thread of natural justice sagaciously passed through the body of Indian constitution. Preamble of the constitution includes the words, ‘Justice Social, Economic and political’ liberty of thought, belief, worship... And equality of status and of opportunity, which not only ensures  fairness in social and economical activities of the people but also acts as shield to individuals liberty against the arbitrary action which is the base for principles of Natural Justice. Apart from preamble Art 14 ensures equality before law and equal protection of law to the citizen of India. Art 14 which strike at the root of arbitrariness and Art 21 guarantees right to life and liberty which is the fundamental provision to protect liberty and ensure life with dignity. Art 22 guarantees natural justice and provision of fair hearing to the arrested person. Directive principles of state Policy specially Art...
Post a Comment
Read more