SYAMALA Vs. GOPAKUMAR

JUDGEMENT

(1.) AGAINST the dismissal of a complaint under S. 138 N. I. Act the complainant has preferred this Revision Petition.

(2.) ON the fundamental facts there appears to be no dispute at all. The cheque was one for Rs. 75,000/ -. It was dated 30th March, 1994. The complainant/ revision petitioner herein is not the payee. The payee is the mother of the revision petitioner. The said cheque when presented for encashment was dishonoured on 23rd April, 1994 on the ground that there is no sufficient amount available in the account to honour the cheque. The deceased payee sent a registered notice of demand dated 26th April, 1994. It was returned unclaimed on 19th May, 1994. Within two days of the date on which the demand notice was issued (26th April 1994) the payee died (on 28th April 1994 ). The accused did not of course make the payment of the amount demanded within the stipulated time to the legal heir. It is in these circumstances that the complainant, as the legal heir of the deceased payee came to the court with a complaint under S. 138 N. I. Act against the accused. The learned Magistrate by the impugned order held that the complainant is neither the payee nor a holder in due course and that in these circumstances the complaint cannot be maintained under S. 142 (a) N. I. Act.

(3.) THE learned Counsel for the complainant/ revision petitioner contends that the drawer has the obligation to make payment to the legal heir of the deceased payee. It is not possible now to ascertain how many legal heirs the deceased payee has. THEre is nothing to show that the accused/ drawer of the cheque was aware of the identity of the legal heir/legal heirs of the payee. THEy had admittedly made no demand. If this Court were to accept this contention of the learned Counsel for the complainant, it would mulct the drawer of the cheque with the liability to search and find out the legal heirs of the deceased payee and make such payment to them within a period of 15 days. That obviously does not appear to be the statutory mandate. THE payee had expired. THE accused could not hence comply with the mandatory requirements of s. 138 N. I. Act within a period of 15 days as insisted by law. THE liability to search and find out the legal heirs and to pay the amount covered by the cheque to them within the period of 15 days prescribed cannot obviously be read into a penal provision like S. 138 N. I. Act.