BANK OF INDIA Vs. STATE

JUDGEMENT

(1.) This petition under Section 482 Cr. P.C. raises an important issue as to who is the "Holder in Due Course" of a cheque.

(2.) The brief facts relevant for the purpose of deciding this petition are that the petitioner bank filed a complaint against the respondent No. 2 Charanjeev Singh Ahluwalia, a director of respondent No. 3, and respondent No. 3 M/s. Delta Airlaid Hygiene Pvt. Ltd. stating that the accused/respondent No. 2 had taken credit facilities from the bank to the tune of ' 1.10 crore and availed these limits and did not pay the dues. The bank served a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act, 2002 upon the accused and called upon the accused to discharge this liability by paying the due amount of the bank to the tune of ' 1,04,72,444/- along with interest @ 16 per cent per annum within 60 days. Accused Charanjeev Singh Ahluwalia issued two cheques in the name of his company for the sum of ' 70.00 lac and ' 34.00 lac drawn on State Bank of Bikaner & Jaipur, Karol Bagh branch and handed over the cheques to the complainant bank in due course of business to clear the outstanding dues towards the complainant bank assuring that the cheque would be honoured. The cheques were dishonoured with remarks of the bank "funds insufficient" and "exceeds arrangements" and the complainant bank filed a complaint under Section 138 of Negotiable Instrument Act against the respondent No. 2 Director of the company.

(3.) There is no dispute that the Director of the company Charanjeev Singh Ahluwalia had issued these cheques from his personal account in favour of the company so that the amount so deposited in the account of the company that had availed overdraft and other facilities from the bank is utilized for discharging dues of the bank. Otherwise, there was no reason for the Director to issue these cheques in favour of the company. There was no transaction between respondent No. 2, Director and respondent No. 3, his company requiring issuance of these cheques. On dishonour of the cheques, the bank filed complaint claiming itself to be the "Holder in Due Course". While learned MM issued a notice under Section 251 Cr. P.C. on the accused persons, on revision, the learned ASJ observed that the bank was not a "Holder in Due Course" since there was no endorsement under Section 16 of N.I. Act made on the cheque and the status of complainant bank, under these circumstances, cannot be treated that of a "Holder in Due Course".