P K KOYA MOIDEEN Vs. G HARIHARAN

JUDGEMENT

(1.) The prayer in the Criminal M.Cs. is to quash C.C. Nos. 971/93, 974/93 and 207/ 94 pending before the Judicial First Class Magistrate-IV, Kozhikode. The Petitioner in the Criminal M.Cs. is the accused in all the three cases and the respondent is the complainant Complaints under S.138 of the Negotiable Instruments Act, 1881 (for short "the Act") are filed by the respondent against the petitioner and process was issued to him. The petitioner seeks to quash the complaints on the ground that those are not maintainable as the respondent/complainant in as such is not the payee or holder in due course. According to counsel for the petitioner only the payee or the holder in due course can institute a complaint and as the complainant does not satisfy the definition of either, the complaints filed by him should not have been taken compliance of by the court below.

(2.) The cheques in question were drawn in favour of R. Ganapathi Iyer, father of the respondent/complainant. The cheques are dated 3.5.1993 and 12.5.1993. Father of the respondent died on 19.5.1993. It is stated in the complaints that Ganapathi Iyer executed a will and the. complaint and his brother were made the executors under the will. It is averred therein that the complaints is filed in his capacity executor of the will. The cheques were presented for collection on 18.10.1993, but those were dishonoured. Notice calling upon the accused to pay the amount covered by the cheques was issued on 13.10.1993. But, there was no positive response wrote the side of the accused. Hence, complaints were filed.

(3.) S.142 of the Act mandates that no courts shall take cognizance of an offence punishable under S.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. As a condition precedent for filing a complaint, the cheques should have been presented to the bank within a period of six months from the date on which it was drawn and the payee or the holder in due course of the cheques, as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of receipt of information by him from the bank regarding the return of the cheque as unpaid (see S.138(b) of the Act). A combined reading of the provisions of S.138 and 142 of the Act will make it clear that it is only the payee or the holder in due courses who can file a complaint and that too after notice demanding payment is issued to the drawer of the cheque.