Criminal Miscellaneous No.1828 of 2004 *** In the matter of an application under section 482 of the Code of Criminal Procedure *** Vijay Chaudhary @ Vijay Kumar Singh, S/o Sri Bhagwan Prasad, R/o Mohalla- Pankaj Market, Saraiyaganj, P.S. Town, District- Muzaffarpur. ...Petitioner Versus 1. THE STATE OF BIHAR & 2. Amit Kumar Singh @ Guddu Singh s/o Late Sambhu Prasad Singh R/o Mohalla- Akharaghat near Ganga Petrol Pump, P.S.-Town, District- Muzaffarpur. …Opposite Parties *** For the petitioner : Mr. S. Parasmani, Advocate For the O.P. No.2 : Mr. Neeraj Kumar, Advocate For the State : Mr. Choubey Jawahar, APP *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The petitioner seeks quashing of the order dated 11.12.2002 passed by the Judicial Magistrate, 1st class, Muzaffarpur, in Complaint Case No.1839 of 2002 (Tr. No.944 of 2003) by which he has taken cognizance under section 138 of the Negotiable Instruments Act, (hereinafter to be referred as „Act‟). 2. By order dated 7.7.2004, the application was admitted and notices were issued to the opposite party no.2, pursuant to which the opposite party no.2 appeared and has been heard today. 3. The case of the complainant Amit Kumar Singh is that the petitioner and father of the complainant were close friends on account of which on the asking of the petitioner five lac rupees on different dates were lent to him by the deceased. Subsequently, when the marriage negotiation of the sister of the complainant started his father asked the 2 petitioner for return of the said money upon which the petitioner reportedly issued four cheques in favour of the father of the complainant. Out of the four cheques, two cheques were deposited in the bank account of the father of the complainant but it was returned by the bank with an endorsement insufficiency of funds. The cheques were dated 29.1.2002 and 5.6.2002 to the tune of Rs.8,000/- and 60,000/- respectively. Apart from these two cheques, there were two post dated cheques which were found in the pocket of the deceased at the time of his murder for which the complainant would take appropriate steps later on. He further alleged that the petitioner was informed by the letter dated 22.7.2002 and thereafter he gave notice on 30.7.2002 but despite the notice which was received by the petitioner on 2.8.2010, he refused to honour the said cheque and, therefore, become liable for prosecution under section 138 of the Act. 4. The contention of the petitioner is that section 8 of the Act defines „Holder of cheque‟ which means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Admittedly, the complainant was not the holder of the said cheque. He could only be defined, if at all, as holder in due course as per section 9 of the Act. But in the present case, there is total absence of any material to show that the complainant for any consideration had become possessor of the cheque and, therefore, in view of the bar under section 142 of the Act, the order of cognizance is bad in law. 5. Section 142 of the Act reads thus: “142. Cognizance of offences- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) No court shall take cognizance of any offence punishable under section 3 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;” It has further been submitted that it is without dispute that the father of the complainant was murdered on 11.6.2002, whereas, the complaint has been filed on 21.8.2002, but there is no averment in the entire complaint that he is the sole legal heir to represent his father. In this regard, learned counsel for the petitioner has placed reliance upon a decision reported in 1996 Cr. L. J. 3153 (P. K. Koya Moideen Vs. G. Hariharan), wherein, it was held that complainant claiming himself to be the executor of the Will of his father was also denied the right to lodge the prosecution under the Negotiable Instruments Act. The court had viewed the absence of any element in the complaint that he had paid consideration to his father and thereby become the holder in due course, thus he could not be presumed to be so. 6. On the other hand, counsel for the opposite party no.2 contended that in the facts of the case since the complainant was, admittedly, the son of the deceased, he has rightly prosecuted the accused for the lapses committed by him. In this regard, he has relied upon a decision reported in 1997 Cr. L. J. 2868 (Mahesh Goyal vs. S. K. Sharma) where, in a situation when the complainant was in possession of a „Self” cheque was held to be “holder in due course”. He has also relied upon a decision reported in 2003 Cr. L. J. 3088 (Ajay Kumar Agarwala Vs. State of Jharkhand), wherein, the son of the holder of the cheque was allowed to be substituted during trial since he was his sole heir as also of the business house which the deceased father was holding. 7. In the present case, the complainant has failed to specifically aver that he had become holder of cheque in due course by 4 virtue of any consideration having been paid to the father or being his sole heir which was the situation in the case reported in 2003 Cr. L. J. 3088. Also the facts of the case reported in 1997 Cr. L. J. 2868 (supra) were totally different since there, there was no denial that the complainant was the rightful holder of the cheque. Thus, the decisions cited on behalf of the opposite party no.2 are clearly distinguishable. 8. Considering the bar under section 142 read with section 9 of the Negotiable Instruments Act, this application is allowed and the order dated 11.12.2002 by which cognizance was taken against the petitioner under section 138 of the Negotiable Instruments Act, in Complaint Case no.1839 of 2002 (Tr. No.944 of 2003) by the Judicial Magistrate, 1st class, Muzaffarpur, is hereby quashed. 9. The application stands allowed. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 7th July, 2010 NAFR/ JA/-