CREDENTIAL FINANCE LIMITED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two writ petitions arise out of two separate complaints filed by the 2nd respondents before Additional Chief Metropolitan Magistrate, 18th Court, Girgaum, Bombay under section 138 of the Negotiable Instruments Act (hereinafter referred to as the said Act ). The Writ Petition No. 1541 of 1999 arises out of Criminal Revision Application No. 671 of 1998 and Complaint C. C. No. 1024/s/97 which arose out of the cheque drawn by the petitioner on 11-11-96 for the amount of Rs. 1,50,00,000/- on the Federal Bank, Fort Bombay and the other Writ Petition No. 1542 of 1999 arises out of Case No. 1708 of 1997 arises out of the cheque drawn by the petitioner on Federal Bank Limited, Fort, Bombay on 3-3-1997 for the amount of Rs. 1,50,00,000/ -. Since the common question arises in two petitions between the same parties, I heard these two petitions together and disposed of the same by this common judgement.

(2.) IT is alleged by the respondent Bank namely Indusind Bank Limited that they have provided petitioners Letter of Credit facilities and he availed that facilities to the tune of Rs. 8 crores and towards this liability aforesaid cheques were issued. According to the respondent, cheques were dishonoured for insufficiency of funds and therefore, the complaint came to be filed before the Magistrates Court. For the purpose of the narration of facts I rely on the facts of the Writ Petition No. 1541 of 1999. Exh. "a" to the writ petition is the cheque in question drawn by the petitioner. It is dated 11-11-1997 drawn on Federal Bank Ltd. , Fort, Mumbai. In the payee column it is written "indusind Bank Limited A/c. Credential Finance Limited or Bearer" and is drawn and signed by the Directors for Credential Finance Limited. A discharge application has been filed by the petitioner before the Magistrate. The contention raised by the petitioner before the Magistrate was that in the cheque petitioner himself who is the drawer of the cheque is shown as payee and in order to maintain a complaint, under section 138 of the Act, it should be filed by the payee. Since the respondents are not payee, the complaint under section 138 is not maintainable. The Magistrate accepted this contention and discharged the petitioner by its order dated 14th September, 1998. This order was challenged under revision by the respondent in Criminal Revision Application No. 670 of 1998. By an order dated 18th August, 1999, the Revisional Court set aside the order of the Magistrate and directed the parties to go for trial. It is in this circumstances, that the petitioner has approached this Court to challenge the order of Revisional Court by way of this writ petition.

(3.) MR. Bulchandani learned Counsel for the petitioner submits that the cheque in question was crossed specially under section 124 of the Negotiable Instruments Act and as per the mandate contained in section 126 the banker on which it was crossed has statutory duty of remitting that amount in the accounts of holder shown on the face of the cheque. In substance, the learned Counsel for the petitioner has contended that even though the respondents name was shown in the column of payee, actually it is crossed specially authorising respondent bank to encash the cheque and credit in petitioners account. Therefore, since the respondent is not payee bank, and in fact the payee in this case is petitioner himself, in the absence of complaint filed by the payee as spelt out in section 138 of the Negotiable Instruments Act, the complaint is not maintainable and the Revisional Court has committed serious error in setting aside the order of the Magistrate discharging the petitioner.