ORDER
H.N. Nagamohan Das, J.
1. In this petition the petitioner has prayed for setting aside the order dated 11.10.2005 in C.C. No. 289/2005 on the file of Judicial Magistrate, I Class, Bagepalli, taking cognizance of the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the Act') and issuing process to the petitioner.
2. The respondent contends that the petitioner for consideration received issued a cheque on 02.11.2004 for a sum of Rs. 1,48,000/-in favour of her husband A.G. Sadananda Bhat. The payee - A.G Sadananda Bhat presented the cheque issued by the petitioner for encashment through his bankers and the same came to be returned with an endorsement mat 'the cheque is unpaid for want of funds'. On 09.05.2005 the fact of dishonour of the cheque was intimated to A.G Sadananda Bhat by his Bankers. On 14.05.2005 A.G. Sadananda Bhat got issued a lawyer's notice to the petitioner intimating about the dishonour of the cheque and demanded to pay the amount due under the cheque. Thereafter on 15.05.2005 A.G. Sadananda Bhat died. On 30.05.2005 the petitioner got issued a reply notice through his lawyer denying his liability to pay the amount due under the cheque. After the demise of A.G. Sadananda Bhat the respondent herein who is the wife and legal representative of the deceased filed a private criminal complaint against the petitioner under Section 200 Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act. The Trial Court under the impugned order dated 11.10.2005 had taken cognizance of the offence, registered the case in C.C. No. 289/2005 and issued process to the petitioner. Aggrieved by this order of the Trial Court in taking cognizance of the offence and issuing process the petitioner is before this Court in this petition.
3. The only contention of Sri. Sunil S. Desai, Learned Counsel for the petitioner is that the legal representatives of deceased payee are not entitled to maintain a petition under Section 200 Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act. He contended that under Section 142 of the Negotiable Instruments Act only the payee or holder-in-due-course are competent to maintain a petition for the offence punishable under Section 138 of Negotiable Instruments Act. Respondent is neither payee nor holder-in-due-course and therefore she is not entitled to file a petition under Section 200 Cr.P.C. Reliance is placed on the following decisions.
1. Vishwa Mitter of Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot v. O.P. Poddar and Ors. (1983) 4 SC 701
2. N. Harihara Iyer v. State of Kerala 2000 Cr.L.J. 1251,
3. G.F. Hunasikattimath v. State of Karnataka : ILR1990KAR3881 ,
4. Union of India and Anr. v. Deoki Nandan Aggarwal AIR 1992 SC 96,
4. Per contra Sri. Rudraiah, learned Counsel for the respondent contended that the respondent being the legal representative of deceased A.G. Sadananda Bhat is entitled for possession, recovery and realisation of the amount due under the cheque in question and is competent to maintain a petition under Section 200 Cr.P.C. Reliance is placed on the following decision.
Punjab and Sind Bank v. Vinkar Sahakari Bank Ltd. and Ors. : 2002CriLJ93 .
5. Heard arguments on both the side and perused the entire petition papers.
6. The Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act 1988 (Act No. 66/1988) has inserted Chapter XVII comprising of Section 138 to 142 in the Act with effect from 1st April 1989. Further by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act 2002 (Act No. 55/2002) Section 143 to 147 are inserted in the Act. The object of this amendment is to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques, with adequate safeguards to prevent harassment of honest drawers. Section 138 specifies the commission of offence and the punishment. Section 139 speaks about the presumption in favour of holder of a cheque. Section 140 says that the drawer of cheque cannot take a defence in a trial that he had no reason to believe when he issued the cheque that it will be dishonoured. Section 141 specifies the offences committed by companies and every person who was incharge of and responsible to the company for the conduct of its business. Section 142 provides the procedure for taking cognizance of the offence. Section 143 specifies that all offences under this chapter shall be tried by a Judicial Magistrate of the First Class or by a Metropolitan Magistrate and empowers the courts to try the cases summarily. Section 144 provides for the mode of service of summons. Section 145 provides for taking evidence of the complainant on affidavit. Section 146 specifies that the contents of Bank's slip or memo denoting the dishonour of cheque presumed to be fact unless the same is disproved. Section 147 specifies that every offence under the Act as compoundable.
7. The relevant section for purpose of this case is Section 142(a) of the Act and the same read as under:
Section 142: Cognizance of Offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
8. A reading of the above provision of law specifies that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or the holder in due course of the cheque. Section 7 of the Act defines 'Payee' means the person named in the instrument. Section 9 defines the 'Holder in due course' means any person who for consideration became the possessor of a promissory note, bills of exchange or cheque if payable to bearer.
9. The contention of Learned Counsel for the petitioner that the legal representatives of payee or the holder in due course are not entitled to file a criminal petition under Section 142 of the Act is unacceptable to me. Section 8 of the Act defines 'Holder' means any person entitled in his own name to the possession thereof and to receive or recover the amount under the instrument from the drawer. Therefore the legal representatives of a payee or holder in due course are entitled to the legal possession of the instrument and further to receive and recover the amount covered under the instrument from the drawer. Section 118(g) of the Act specifies that holder of a negotiable instrument is a holder in due course. Therefore the legal representatives of deceased payee or holder in due course are entitled to file a complaint under Section 142 of the Act for offence punishable under Section 138 of the Act.
10. The Supreme Court in Punjab and Sind Bank v. Vinkar Sahakari Bank Ltd. : 2002CriLJ93 held as under:
21. Section 142 of the Act envisages a complaint to be made in writing either by the payee or the holder in due course of the cheque, as the case maybe. Section 8 of the Act defines 'holder' as any person entitled in his own name to the possession of the cheque and to receive or recover the amount due thereon from the parties thereto. We have no doubt that the complainant Bank was well within its right to possess the cheque and to receive or recover the amount covered by the instrument. 'Holder in due course' means a person who for consideration became the possessor of a cheque if payable to the bearer before the amount became payable (vide Section 9).
22. In this context reference has to be made to Section 118(g) of the Act which contains a mandate that until the contrary is proved the holder of a negotiable instrument shall be presumed to be a holder in due course. Thus there is no escape for the court from drawing such presumption.
11. Though the facts in Punjab and Sind Bank's case are different, the ratio is that the 'holder' of an instrument shall be presumed to be a 'holder in due course' until the contrary is proved. Therefore in the instant case the respondent claiming to be the wife of deceased payee filed the complaint under Section 142 of the Act before the trial court and the same is maintainable until the contrary is proved.
12. For the reasons stated above the petition is hereby dismissed.