MANGLESH KANWAR vs STATE OF RAJASTHAN

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HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Miscellaneous (Petition) No. 4716/2023
CNR: RJHC010520072023 | URN: CRLMP / 9767U / 2023
Manglesh Kanwar W/o Shri Dheerajkumar Chouhan, Aged About
39 Years, B/c Rajput R/o 65 Khasra No. 46 Ramnagar Nandari
Dist. Jodhpur
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Royal Finance, Through Proprietor Jaydutt Sharma S/o
Late Dr. K.d. Sharma B/c Brahman R/o A/12 Saraswati
Nagar Jodhpur
----Respondents
For Petitioner(s) : Mr. Shreyansh Ramdev
For Respondent(s) : Mr. Sriram Choudhary, PP
For Complainant(s) : Mr. Vikas Hedau
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
Reportable
Conclusion of Arguments &
Reserved on : 13/10/2026
Pronounced on : 27/10/2026
1. The present criminal miscellaneous petition has been filed
seeking the quashing of the order dated 14.03.2018 passed in
Criminal Original Case No. 416/2016 (NCV No. 1385/2017),
pending before the learned Special Metropolitan Magistrate (N.I.
Act Cases), No. 7, Jodhpur Metropolitan, whereby the substance of
the accusation for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881, was read over to the petitioner,
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and to acquit the petitioner in connection with the said
proceedings.
2. The facts of the case, as narrated in the petition, are that the
petitioner’s husband, Dheeraj Singh Chauhan, borrowed a sum of
Rs.1,00,000/- on 13.04.2015 and a further sum of Rs.1,10,000/-
on 08.08.2015 from respondent No. 2, carrying interest @2.25%
per month. The total borrowed amount was Rs.2,10,000/-,
repayment of which was guaranteed by the petitioner. In respect
of the said liability, her husband issued a cheque for
Rs.2,10,000/-, while the petitioner also issued a cheque for the
same amount as security.
2.1. Both cheques, upon presentation, were dishonoured due to
insufficiency of funds. Consequently, respondent No. 2 instituted a
complaint under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as the ‘Act of 1881’) before the
learned trial Court. The learned trial Court took cognizance of the
offence on 03.08.2016 and, on 14.03.2018, read over the
substance of accusation to the petitioner and her husband, who
denied the accusation and claimed trial.
2.2. Owing to matrimonial discord, the petitioner began residing
at her parental home and, having no knowledge of the hearing
dates, failed to appear before the trial Court. Consequently, vide
order dated 19.07.2019, she was declared an absconder and a
standing warrant was issued against her. The proceedings
continued against her husband, who was convicted by judgment
dated 02.12.2019 and sentenced to six months’ simple
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imprisonment along with a fine of Rs.2,65,000/-, with a further
sentence of two months’ simple imprisonment in default of
payment of fine. The petitioner’s husband has served the sentence
imposed upon him. Upon receiving information of the standing
warrant issued against the petitioner, she surrendered before the
learned trial Court and obtained bail.
2.3. Being aggrieved by the order dated 14.03.2018, the
petitioner has filed the present petition seeking quashing of the
same as well as seeking her acquittal in connection with the
proceedings under Section 138 of the Act of 1881.
3. Learned counsel for the petitioner submitted that the loan in
question was admittedly obtained by the petitioner’s husband for
his business, and the petitioner had merely issued a cheque as a
guarantor towards repayment of the said loan. For the single
liability of Rs.2,10,000/-, two cheques, one issued by the
petitioner's husband and the other by the petitioner, were
obtained. He contended that the petitioner’s cheque, having been
issued only as security or guarantee, could not form the basis of
prosecution under Section 138 of the Act of 1881. He further
submitted that the petitioner’s husband had already undergone
the sentence imposed upon him and that the complainant’s
remedy, if any, lay in pursuing appropriate civil proceedings for
recovery of the amount.
3.1. Learned counsel further submitted that the complainant had
adopted an impermissible procedure by presenting both cheques,
issuing a composite legal notice to the petitioner and her husband,
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and initiating common proceedings against them. The complainant
ought to have proceeded separately in respect of each cheque by
following the statutory procedure prescribed under the Act of
1881. He contended that the presumption under Section 139 of
the Act of 1881 could not be invoked against the petitioner in the
absence of any legally enforceable debt or liability attributable to
her, particularly when the loan had admittedly been obtained by
her husband.
3.2. Learned counsel also placed reliance upon the judgment
passed in the case of Shantaram Namdeo Sathe v. State of
Maharashtra & Anr.; 2019 SCC OnLine Bom 4354 , and
contended that a cheque issued merely as security or guarantee
could not attract prosecution under Section 138 of the Act of
1881. Reliance was further placed upon Dilip Hariramani v.
Bank of Baroda; (2024) 15 SCC 443 , to submit that the
petitioner could not be subjected to criminal liability merely on
account of having stood as a guarantor. He contended that the
liability of a guarantor under the Indian Contract Act, 1872, is
distinct from criminal liability, and that vicarious criminal liability
under Section 141 of the Act of 1881 could not be fastened upon
the petitioner solely on the basis of her status as a guarantor.
3.3. Learned counsel further submitted that owing to matrimonial
discord, the petitioner had been residing at her parental home and
had not been served with notice, resulting in her absence from the
proceedings and her subsequent declaration as an absconder. He
contended that in view of the aforesaid facts and the legal position
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emerging from the judgments relied upon, the proceedings
against the petitioner were not sustainable in law. Accordingly,
learned counsel prayed that the petition be allowed and the
petitioner be exonerated from the offence under Section 138 of
the Act of 1881.
4. Per contra, learned counsel for the respondent no.2
submitted that respondent No. 2 had instituted a joint complaint
under Section 138 of the Act of 1881 against the petitioner and
her husband, Dheeraj Singh, who was the principal borrower and
had also issued a cheque towards repayment of the loan. He
contended that the petitioner had stood as a guarantor and had
issued a cheque bearing her signature in respect of the liability in
question. Upon taking cognizance, the learned trial Court
summoned both the accused, explained the substance of
accusation to them, and commenced the trial. However, owing to
her absence, the petitioner’s bail bonds were forfeited and she
was subsequently declared an absconder under Section 82 Cr.P.C.
The trial proceeded against her husband, who was convicted vide
judgment dated 02.12.2019.
4.1. He further submitted that following her subsequent
appearance before the trial Court, the petitioner’s trial resumed,
the complainant was cross-examined on her behalf, and her
statement under Section 313 Cr.P.C. was recorded. The final
arguments on behalf of the complainant had been concluded, and
the matter is pending for completion of arguments on behalf of
the accused and pronouncement of judgment.
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4.2. Learned counsel further submitted that the present petition
challenges the order dated 14.03.2018 after an unexplained delay
of approximately five years. He contended that in proceedings
instituted under Section 138 of the Act of 1881, which are
governed by the procedure applicable to summons cases, Section
251 Cr.P.C. does not contemplate the framing of a formal charge
or a separate hearing on charge. The learned trial Court is
required only to state the substance of accusation to the accused
and ascertain whether the accused pleads guilty or claims to be
tried. Accordingly, the mere explanation of the substance of
accusation and commencement of trial did not constitute any
illegality warranting interference. In support of this contention,
learned counsel relied upon judgments passed by Co-ordinate
Benches of this Court in Jagmohan v. State of Rajasthan &
Anr.; S.B. Criminal Miscellaneous Petition No. 4231/2017
(decided on 12.05.2025) and Kundanveer Singh & Ors. v.
State of Rajasthan; S.B. Criminal Miscellaneous Petition No.
2999/2017 (decided on 07.12.2017).
4.3. Learned counsel also submitted that a joint complaint under
Section 138 of the Act of 1881 was maintainable against the
principal borrower as well as the guarantor. Reliance was placed
upon the judgment passed by a Co-ordinate Bench of this Court in
Rakesh Jain v. State of Rajasthan & Anr.; S.B. Criminal
Miscellaneous Petition No. 167/2017 (decided on
23.01.2017). Further reliance was placed upon ICDS Ltd. v.
Beemna Shabeer & Anr.; AIR 2002 SC 3014 , wherein the
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Hon’ble Supreme Court considered the scope of Section 138 of the
Act of 1881 and held that the expression “any debt or other
liability” is of wide import. He contended that the liability arising
from a cheque issued by a guarantor could not be excluded from
the ambit of Section 138 of the Act of 1881 merely on the ground
that the guarantor’s liability was co-extensive with that of the
principal debtor under the general law of contract.
4.4. Learned counsel lastly submitted that the petitioner’s prayer
for acquittal ought to be considered by the learned trial Court
upon conclusion of the trial, particularly when the proceedings
against her were at an advanced stage. He contended that
interference by this Court at the present stage would prematurely
terminate the trial and deprive the parties of their statutory
remedies against the eventual judgment. Accordingly, learned
counsel prayed for dismissal of the petition.
5. Heard learned counsel for the parties and perused the
material available on record.
6. The issues arising for consideration in the present petition
are, firstly, whether the proceedings under Section 138 of the Act
of 1881 against the petitioner warrant interference because the
cheque in question was allegedly issued by her as a guarantor for
the liability incurred by her husband, and secondly, whether the
conviction and sentence already undergone by her husband in
respect of the same underlying transaction furnish a ground for
quashing the proceedings against the petitioner in exercise of the
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inherent jurisdiction of this Court under Section 482 Cr.P.C.
(corresponding to Section 528 BNSS).
7. So far as the challenge to the order dated 14.03.2018 is
concerned, it is relevant to note that proceedings under Section
138 of the Act of 1881 are tried in accordance with the procedure
applicable to summons cases. Section 251 Cr.P.C. (corresponding
to Section 274 BNSS) requires the substance of accusation to be
stated to the accused, who is then called upon to plead to the
accusation or state whether he or she has a defence to make. In
the present case, the substance of accusation was stated to the
petitioner on 14.03.2018, whereupon she denied the accusation
and claimed trial. No procedural illegality is apparent merely from
the fact that the learned trial Court proceeded in accordance with
Section 251 Cr.P.C. The challenge to the said order, therefore,
cannot be sustained.
8. Learned counsel for the petitioner has contended that the
loan was obtained by the husband of the petitioner and she had
issued the cheque only as a guarantor. In this regard, the
judgment of the Hon’ble Supreme Court in the case of ICDS Ltd.
(supra) is relevant. Therein it was held that a cheque issued by a
guarantor is not excluded from the ambit of Section 138 of the Act
of 1881 merely because the underlying transaction was
undertaken by the principal debtor. The expressions employed in
the provision are sufficiently wide to encompass a cheque issued
in respect of a legally enforceable debt or other liability, subject to
fulfilment of the statutory requirements. Accordingly, the
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petitioner’s status as a guarantor does not, by itself, furnish a
ground for quashing the proceedings when the cheque is alleged
to have been issued by her and bears her signature.
8.1. The decision in the case of Dilip Hariramani (supra) relied
upon by learned counsel for the petitioner, does not advance the
petitioner’s case to the same extent. The said decision concerned
the imposition of vicarious criminal liability upon a person in
relation to cheques issued by a firm and the requirements for
attracting Section 141 of the Act of 1881. In the present case, the
petitioner is alleged to have issued a cheque from her own bank
account. The question, therefore, is not merely whether criminal
liability can be fastened upon her on account of her status as a
guarantor, but whether the cheque personally issued by her
satisfies the requirements of Section 138 of the Act of 1881. The
said judgment is distinguishable on this basis.
8.2. Learned counsel for the petitioner has also placed reliance
upon Shantaram Namdeo Sathe (supra) to contend that a
cheque furnished as security or guarantee cannot attract the
provisions of Section 138 of the Act of 1881. However, the mere
description of a cheque as a security cheque does not, by itself,
determine the applicability of the provision. The relevant
consideration is whether the cheque represented a legally
enforceable debt or other liability in the circumstances existing at
the relevant time. The decision relied upon by the petitioner
turned upon the evidence available in that case and cannot be
construed as laying down an absolute rule excluding every cheque
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issued by way of security from the operation of Section 138 of the
Act of 1881.
9. In the present case, the petitioner’s own contention is that
her cheque was issued as security for repayment of the amount
borrowed by her husband and was to be presented only upon
dishonour of his cheque. A perusal of the complaint (Annexure-6)
filed by the respondent no.2 reflects that the petitioner’s cheque
was presented on 15.06.2016 after the husband’s cheque had
been dishonoured on 14.06.2016. In view of this, the contention
that the petitioner’s cheque was presented prematurely, contrary
to the alleged arrangement, would not be available merely on the
ground that both cheques related to the same transaction. Be that
as it may, the sequence of presentation does not, by itself,
conclude the separate question whether the petitioner’s cheque
represented a legally enforceable liability. That question must be
examined in the light of the terms of the transaction and the
evidence available in the proceedings which exercise can be
undertaken by the learned trial Court.
10. The further contention that the husband has already
undergone the sentence imposed upon him and that continuation
of proceedings against the petitioner would result in double
recovery also requires distinction between criminal liability arising
from dishonour of a cheque and recovery of the underlying debt.
The husband’s incarceration does not, by itself, establish that the
amount due to the complainant has been paid or recovered. At the
same time, the complainant cannot recover the same debt more
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than once. Any amount actually recovered towards the underlying
liability must, therefore, be duly accounted for in accordance with
law. The possibility of double recovery, however, does not, in the
absence of further material, extinguish the proceedings arising
from a separate cheque allegedly issued by the petitioner.
10.1. It is also pertinent to note that, according to the
submissions advanced on behalf of respondent No. 2, the
petitioner has appeared before the learned trial Court, the
complainant has been cross-examined on her behalf, her
statement under Section 313 Cr.P.C. has been recorded, and the
matter has reached the stage of final arguments. In these
circumstances, the disputed questions concerning the nature of
the transaction, the purpose for which the petitioner’s cheque was
issued and the existence of a legally enforceable liability may
appropriately be considered by the learned trial Court on the basis
of the evidence on record. The inherent jurisdiction under Section
482 Cr.P.C. (corresponding to Section 528 BNSS) is not ordinarily
exercised to undertake an assessment of disputed evidence or to
substitute a premature determination of issues that remain for
adjudication at trial.
11. The petitioner’s status as a guarantor, the fact that the
underlying loan was obtained by her husband, and the description
of her cheque as security do not, standing alone, establish that
the proceedings against her are legally unsustainable. The
petitioner’s remaining contentions concerning the enforceability
and extent of liability would require consideration in accordance
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with law on the basis of the material before the learned trial
Court.
12. In view of the discussion made above, this Court does not
find sufficient ground to exercise its inherent jurisdiction to quash
the proceedings against the petitioner. Accordingly, the present
criminal miscellaneous petition is dismissed .
13. Needless to observe that the petitioner would be at liberty to
raise all grounds available to her in law before the learned trial
Court, which shall consider the same on their own merits,
uninfluenced by any observations made herein.
14. Pending application(s), if any, stand(s) disposed of.
(SUNIL BENIWAL),J
Sushil Mahecha
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