LABH CHAND JAIN Vs. SATISH KUMAR MEENA

JUDGEMENT

(1.) By this criminal Misc. petition, a challenge is made to the order dated 24.11.2003 passed by the learned Additional Chief Judicial Magistrate, Kishangarh, Ajmer and the order dated 25.7.2007 passed by the learned Additional Sessions Judge, Kishangarh, Ajmer. Vide order dated 24.11.2003, cognizance was taken for offence under section 138 of the Negotiable Instruments Act, 1881 (for short "the Act of 1881"). The petitioner preferred a revision petition to challenge the said order. It was precisely on the ground that offence under section 138 of the Act is not made out as the cheque in question was not given to the non-petitioner complainant but to his father. The complaint can be maintained only by the holder of the cheque in due course and not by a stranger. The court below failed to consider the aforesaid aspect and took cognizance of offence by treating cheque in favour of the Hindu Undivided Family (HUF). It is based on previous transaction between the parties. The cheque in question was not in the name of "Karta" of the HUF but in the name of individual. On the death of the father, non-petitioner complainant had no authority to file a complaint under section 138 of the Act of 1881. It is more so when during life time of the holder of the cheque, he did not file complaint under section 138 of the Act. A reference of the judgment of the Kerala High Court in the case of Koya Moideen v. Hariharan, 1996 CrLJ 3153 has been given. The prayer is made to quash the impugned orders.

(2.) Per contra, learned counsel for non-petitioner complainant submits that the courts below have passed detailed orders for taking cognizance of the offence and dismissal of revision petition. It was after considering that there was business relations between the two parties. The business by the non-petitioner was through HUF. The cheques were given in the name of the father being "karta" and, on his death, the non-petitioner registered the complaint being member of HUF. Taking into consideration the aforesaid, the complaint was held to be maintainable. Accordingly, prayer is made to dismiss the petition. Reference of various judgment of different High Courts has been given to maintain the orders passed by the courts below.

(3.) I have considered rival submissions of the parties and perused the record.