IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 9TH DAY OF OCTOBER 2009/17TH ASWINA 1931 Crl.MC.No. 1639 of 2007 ( ) --------------------------- CC.NO.1009/2004 of JUDICIAL FIRST CLASS MAGISTRATE.,TIRUR -------------------------------- PETITIONER(S)/ACCUSED: -------------------------------------- SREEJU, S/O.SOMAN, SREE BHAVANAM, MULAVANA P.O., KOLLAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.PRAKASH P.GEORGE RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. O. NIJITH, S/O.GOVINDAN, OMPEDATHIL HOUSE, K. PURAM P.O., THANALOOR VIA, MALAPPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI.B.VINOD R2 BY SRI.T.KRISHNAN UNNI,SENIOR ADVOCATE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.1639/2007 APPENDIX PETITIONER'S ANNEXURES: ANNEX A1 COPY OF THE COMPLAINT IN CC NO.1009/2004 BEFORE THE JFCM TIRUR ANNEX A2 COPY OF THE LAWYER NOTICE DATED 14/10/2004 ANNEX A3 COPY OF THE CMP.NO.4840/2006 FILED BEFORE THE JFCM, TIRUR. ANNEX A4 COPY OF THE ORDER IN CMP.NO.4840/2006 PASSED BY THE JFCM, TIRUR. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts K.HEMA, JUDGE. ---------------------------------- Crl. M.C. No.1639 of 2007 ---------------------------------- Dated this the 9th day of October, 2009 ORDER This petition is filed to quash the complaint filed against the petitioner alleging offence under section 138 of Negotiable Instrument, Act (for short 'the Act'). 2. A complaint was filed against petitioner by second respondent herein, on the allegation that ` 6,00,000/- was handed over to accused to be given to seek admission in a college. Out of this amount, only ` 4,00,000/- was given by accused to the college authorities. He promised to pay the balance amount of ` 2,00,000/- also to them. Since the amount was not paid by accused, complainant's father somehow raised the amount and paid it. 3. Towards the accused's liability to return ` 2,00,000/- to complainant, petitioner issued a cheque for ` 2,00,000/- in the name of the complainant. The cheque on presentation to the bank was dishonoured with the endorsement “funds insufficient”. A notice was sent to accused demanding repayment but the amount was not 2 paid. Hence, a complaint was filed alleging offence under Section 138 of the Negotiable Instrument, Act. 4. Learned counsel for the petitioner submitted that the complaint is not filed by the 'payee' or 'holder in due course' and hence the Court ought not to have taken cognizance of the offence under section 138 of the Negotiable Instruments Act. Learned counsel for the 2nd respondent submitted that the complainant is the 'payee' and in the cause title, the name of the second respondent (complainant) and his address are shown. Therefore, it cannot be said that the complaint is not filed by the 'payee' and hence there is no bar in taking cognizance of the offence, it is submitted. He also cited a decision reported in Ashok Kumar V. Dr.T.R. Bhageerathi (2009 CRI.L.J.221) to argue that the Court need not proceed on technicalities in an offence of this nature. 5. Learned counsel for 2nd respondent argued that the accused has no case that he is not liable to pay the amount covered by the cheque. He has no case that the amount stated in the cheque is due to the person who is entitled to 3 receive the same. He has also no case that he had sufficient fund in his bank account or that the cheque issued by him is not dishonored. He has also no case that the cheque is not drawn by him. In such circumstances, from the allegations made in the complaint, it is clear that a cheque was drawn by the accused and it was dishonored for insufficiency of funds and therefore, the offence under section 138 is attracted, especially since the complaint is filed by the 'payee', it is argued. 6. It is also argued that on the allegations made in the complaint, if the court finds that an offence is prima facie constituted, the Court need not insist that the 'payee' or 'holder in due course' himself must file the complaint. It is sufficient that the complaint is filed by a person who is entitled to receive the amount. In support of his argument, he placed reliance upon a decision reported in [Central Bank of India V. M/s. Saxon Farms] (1999 (3)KLT 484 (SC)) and argued that in the said case, a complaint was filed by the wife of the 'payee' who was no more and the Court found that the complaint filed by the wife who is 4 not the 'payee' was perfectly in order. 7. It was held in the decision cited above that the wife was entitled to receive the money covered by the cheque and she can be treated as the 'holder' of the cheque and in view of section 118(g) of the Act, she can be treated as 'holder in due course'. Therefore, according to learned counsel for respondent, this complaint cannot be said to be invalid or not maintainable only because the payee's father filed the complaint. 8. It is also pointed out that it is specifically mentioned in Annexure–II notice that the amount was paid by both the son and father together. Therefore, the father is also entitled to get the amount, even though the cheque is issued in the name of the son, who is the second respondent herein. Since he is also entitled to get the amount from the accused, applying the principles laid down in the decision cited, he can be treated as a 'holder' and by virtue of section 118(g), he can also be treated as a 'holder in due course', it is argued. Therefore, section 142 will not be a bar to take cognizance, it is strenuously contended. 5 9. On hearing both sides and on going through the complaint, I find that in the cause title of the complaint, second respondent(son) is shown to be the complainant but as per averments in the complaint, the second respondent's father is described as the “complainant”. The second respondent's father filed the complaint as a power of attorney holder of second respondent and not on his own behalf. 10. If the second respondent is treated as the “complainant”, going by the cause title alone, there cannot be any bar in taking cognizance on the basis of the complaint, since he is the 'payee'. But, in the body of the complaint, it is alleged that the complainant is second respondent's father, as the endorsee. There is no averment in the complaint that second respondent himself is the complainant as a “payee”. Therefore, no cognisance can be taken, treating second respondent who is shown as complainant in the cause title, as the “payee”. The court cannot proceed merely on the basis of the description in the cause title, ignoring the allegations made in the complaint. 6 11. As per the allegations in the complaint, the father is the power of attorney holder of second respondent(son) and he is also described as the complainant. Hence, going by the allegations made in the body of the complaint, father is the complainant and not the son(second respondent herein). Section 142 of N.I Act lays down that no Court shall take cognizance of an offence under section 138 unless the complaint is lodged either by the 'payee' or the 'holder in due course'. 12. The second respondent's father admittedly is not the 'payee'. But, it appears from the averments in the lawyer notice issued on his behalf as Annexure–AII, that he is claiming to be the 'indorsee'. It is alleged in the notice that the cheque issued in the name of the second respondent was 'endorsed' in favour of his father. It is on the strength of such endorsement that a lawyer notice was issued. 13. Learned counsel for the respondent submitted that there is a valid endorsement on the cheque as stated in section 15 of the Act and therefore, the second respondent's 7 father can be treated as the 'holder in due course', as referred to in section 9. Sections 9, 15 and 16 of Negotiable Instruments Act have to be looked into in this context. Those sections are extracted here under. Section 9: “ Holder in due course”- “Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if [payable to order], before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. Section 15: Indorsement – When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he said to indorse the same, and is called the “indorser”. Section 16: Indorsement “in blank” and “in full” - “Indorsee”. - [(1)] If the indorser signs his name only, the indorsement is said to be “in blank”, and if he adds a direction to pay the amount mentioned in the instrument to, or to the order of, a specified person, the indorsement is said to be “in full”, and the person so specified is called the “indorsee” of the instrument. 14. On a reading of section 9, it is clear that the “indorsee” of the cheque, can also be treated as a 'holder in 8 due course', under certain circumstances. “Indorsee” is defined Under section 16(1). Section 16 lays down that if the indorser signs his name only, the endorsement is said to be in blank and if he adds a direction to pay the amount mentioned in the instrument to or to the order of a specific person, the endorsement is said to be in full and the persons so specified is called the ”indorsee” of the instrument. 15. In addition to affixing signature, the maker of the cheque has to add a direction to pay the amount to a specific person or to the order of a specified person. A person so specified alone can be said to be the “indorsee” of the instrument. In this case, there is no such direction on the cheque in favour of a specified person, as required in Section 16. A perusal of the cheque will show that there is no direction in the cheque to pay the amount in favour of the second respondent's father. 16. Therefore, the second respondent's father who has styled himself as the complainant cannot be said to be an “indorsee” as per section 16. Therefore, second 9 respondent's father cannot be treated as “indorsee” under Section 16. He will also not come under definition of “holder in due course” as stated in section 9, not being an “indorsee”. 17. The next question is whether relying upon the decisions cited by the second respondent's counsel, second respondent's father can be treated as a 'holder' and whether a complaint filed by himself is valid. In the decision cited by learned counsel for respondent, legal representative of the 'payee' lodged a complaint on the death of payee. The High Court of Andra Pradesh held that such a complaint is valid, since the legal representative can be stated to be a 'holder' and by virtue of section 118(g), she can also be treated as a 'holder in due course'. 18. On going through the said decision, with due respect, I am unable to accept the view expressed therein for the following reasons: As per Section 142 of the Negotiable Instrument Act, the Court can take cognizance of the offence under Section 138, only if the complaint is filed either by the 'payee' or the 'holder in due course'. In the 10 decision cited, the Court proceeded as if a legal representative is a holder. But, 'holder' has a definite meaning under the Act. 'Holder' is defined in section 8 as here under: Section 8 - “Holder” - The “holder” of a promissory note, bill of exchange or cheque 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. Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction. 19. As per the definition of holder in section 8, 'holder' 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. The drawer, drawee and the payee are the parties to a cheque. The person who makes the cheque is the 'drawer' and the person who is directed to pay the amount covered by the cheque is the 'drawee', i.e the bank. The 'payee' is the person named in the instrument to whom or whose order, the money recovered by the instrument is directed to be paid. 20. A close reading of section 8 will show that a 11 person who is entitled to receive or recover the amount due as per the cheque from the parties to the cheque is the 'holder' provided it is further established that such person is also entitled to be in possession of the cheque in his own name. A legal representative, in my view, cannot be said to be a person who is entitled to be in possession of the cheque in his or her own name. 21. A close perusal of the relevant definitions 'payee' or 'holder' show that, a payee may not be treated as a 'holder' under certain circumstances, since he cannot be said to be a person entitled in his own name to the possession of the cheque. Occasions will arise wherein a person who desires to draw money from the bank will issue a cheque in the name of his servant or another person as the 'payee' and he is shown as 'payee' only for the purpose of drawing the money from the bank. 22. But such a person (payee) cannot be said to be entitled in his own name to the possession of the cheque. His possession is only on behalf of the maker or the drawer of the cheque. Even though he is entitled to receive and 12 recover the amount from the bank, it can be done only on behalf of the drawer and the entitlement is not in his own name. So unless a person can establish that he is a 'holder' as specifically referred under section 8, such a person cannot be said to be a holder merely because he is having a right as a legal representative, in the property belonging to the deceased. Such a legal representative is not entitled in his own name for possession of cheque which is issued to the deceased as “payee”. He will not be entitled to receive and recover the amount due thereon from the parties thereto, as stated in Section 8. 23. As a legal representative, he may be entitled to prosecute a complaint filed by the payee or holder in due course on the death of the complainant. While prosecuting such complaint, he does not come to the shoes of the complainant, but he is only given permission to continue the prosecution under Section 302 Cr.P.C. Such permission is granted not because he is a payee or holder or holder in due course. 24. Unless a person is a 'holder', he cannot be 13 presumed to be the 'holder in due course', under section 118(g). A 'holder' of a Negotiable Instrument Act can be presumed to be a 'holder in due course' provided certain requirements as stated in Section 118(g) are satisfied. The burden of proving that the 'holder' is a “holder in due course” also lies upon the person who claims himself to be the holder. 25. Coming to the facts of this case, the petitioner cannot be said to be the “holder” of the cheque. He has no claim that he is entitled to be in possession of the cheque in his own name. But his definite case is that he is an “indorsee” of the cheque and his right flows from the endorsement on the cheque and hence he is the holder in due course only as an 'indorse', and not as a 'holder'. There are no averments in the complaint to show that the petitioner can be treated as a 'holder', as stated in section 8, apart from being an “indorsee”. 26. Summing up, I hold that going by the averments in the complaint, the second respondent's father has treated himself to be the complainant and he filed the complaint, 14 claiming himself to be the indorsee (vide Annexure–AII notice). But, he cannot be treated as a 'holder in due course', for the reasons already discussed and he is not a 'payee' also. Hence, there is a bar under section 142 of the Act to take cognizance of the offence under section 138, on a complaint filed by second respondent's father. 27. The second respondent's father cannot also be said to the 'holder' as stated in section 8, since he himself does not have such a case, as per the averments in the complaint. Therefore, even on the strength of presumption under section 118(g), he cannot be presumed to be the holder in due course. 28. Learned counsel for the petitioner also submitted that there is no notice to petitioner as stated in section 138 (b) of the N.I Act. Section 138(b) lays down that the payee or holder in due course of the cheque has to make a demand for the payment of the amount covered by the cheque 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. I 15 have already held that the notice in this case is issued by the second respondent's father, who has styled himself as the complainant in the body of the complaint but he is neither the 'payee' nor the 'holder in due course'. 29. Therefore, the requirement under section 138(b) are also not satisfied and hence there is no valid notice under section 138(b) in this case. In the absence of a valid notice under section 138(b), offence under section 138 of N.I Act will not be attracted. Therefore, the Court ought not have taken cognizance of offence under section 138 of N.I Act. Hence, this Court can quash the complaint and the proceedings taken against the accused pursuant to such a complaint, by invoking section 482 Criminal Procedure Code. Hence the following order is passed: 1. Annexure–A complaint is quashed. 2. Further proceedings against the petitioner pursuant to Annexure–A complaint are quashed. This petition is allowed. K. HEMA, JUDGE ss