IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No.92 of 2003. CRIMINAL REVISION APPLICATION No.92 of 2003. CRIMINAL REVISION APPLICATION No.92 of 2003. Virendra Govindji Shah. ..Applicant. Vs. Mr Prabhakar V. Sharma ..Respondents. Mr V. G. Shah, Applicant in person. Respondent No.1 is servied - absent. Mr J.P.Yagnik, A.P.P. for State/Respondent No.2. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 23RD JUNE, 2008. DATED : 23RD JUNE, 2008. DATED : 23RD JUNE, 2008. P.C.:- P.C.:- P.C.:- 1. Heard the rival parties. Perused the petition. 2. This revision is directed against the judgment and order, dated 29-11-2002, passed in Criminal Appeal No. 96 of 2002 by the Additional Sessions Judge for Greater Bombay ("the Lower Appellate Court") whereby the appeal was allowed and the judgment and order passed by the Metropolitan Magistrate, Esplanade, Mumbai, ("the Trial Court") in Criminal Case No. 12/S/98 was set aside and the amount of fine was ordered to ( 2 ) be refunded to the applicant-accused. THE FACTUAL MATRIX: THE FACTUAL MATRIX: THE FACTUAL MATRIX: ------------------ ------------------ ------------------ 3. The factual matrix reveals that there were certain transactions of loan between the present applicant and the respondent. The original accused - Respondent No.1 herein had issued a cheque which was dishonoured by his bankers. The cheque was issued by the present applicant on behalf of his minor son Master Rajvi Shah by way of friendly loan in the sum of Rs. 15,000/-. Respondent No.1 - accused issued one cheque of Rs. 15,000/- in favour of Master Rajvi Shah alleged to be in discharge of his liability which was dishonoured with the remarks "refer to drawer". Consequently, notice under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I.Act,1881" for short) was issued by R.P.A.D. which was received by Respondent No.1-accused. He failed to comply with the notice, with the result, prosecution under Section 138 of the N.I.Act, was initiated describing the complainant as under. COMPLAINANT: COMPLAINANT: COMPLAINANT: ------------ ------------ ------------ ( 3 ) "MR VIRENDRA G. SHAH, the father and natural guardian of Master Rajvi V. Shah (Minor) residing at Shantivan 1-B, Block No. 307, 3rd Floor, Rajeha Township, Malad (East), Mumbai 400 097." (Emphasis supplied) 4. In para 1 of the complaint, the complainant has pleaded as under. "I, the complainant above named father and natural guardian of Master Rajvi V. Shah do hereby state on solemn affirmation as under." (Emphasis supplied) 5. The aforesaid complaint was tried by learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai who was pleased to convict Respondent No.1-accused under Section 138 of the N.I.Act, 1881 and sentenced him to suffer simple imprisonment (S.I.) for a period of one month and to pay fine of Rs. 5,000/-, in default to suffer two months S.I. Out of the said fine an amount of Rs. 4,000/- was ordered to be paid to the complainant as compensation. ( 4 ) 6. Being aggrieved by the aforesaid order dated 23.5.2002 passed by the Metropolitan Magistrate, revisional jurisdiction of the Session Court for Greater Bombay was invoked by Respondent No.1. The learned Additional Sessions Judge allowed the appeal holding as under. "The short point therefore to be considered is the question of liability. As per the evidence as stated above, it is clearly stated that the complainant had given the loan to the accused. This would mean that the loan given by the complainant was repayable to the complainant. In this clear cut background of what is stated by the complainant himself it is apparent that the liability to pay was to the complainant and not to the son. The cheque is drawn in the name of the son and obviously there was no liability to pay anything to the son. That being so, it is required to be now said unfortunately though that the condition of the cheque having been issued in discharge of existing liability cannot be said to be fulfilled. I say unfortunate because of the peculiar facts of the case. Had the cheque been drawn in the name of the complainant, there would have been absolutely no defence to the accused. The complainant seems to be appearing in person and the complaint is also filed by him in person. Under these circumstances, though the accused has not adduced any evidence and though the presumption under the Negotiable ( 5 ) Instruments Act are available still as I stated the very fact that the cheque is in the name of the son whereas the actual liability is towards the father, there is no alternative but to say that the conviction is not justified. In view of this position the appeal has to be succeed." 7. The above order is subject matter of challenge in this revision. Mr Virendra Shah, father of the minor, appeared in person, whereas nobody has appeared for Respondent no.1 inspite of service. Learned A.P.P. represented Respondent No.2-State. CONSIDERATION: CONSIDERATION: CONSIDERATION: -------------- -------------- -------------- 8. After having heard the applicant in person, the impugned order is clearly unsustainable and liable to be set aside. The perusal of the complaint would show that the cheque was issued in the name of the minor. It was deposited for encashment in the account of the minor. The cheque was dishonoured. The notice was issued on behalf of the minor through his natural guardian. The complaint was filed on behalf of the minor. The learned Sessions judge ought to have realized that a minor has no capacity to enter into a contract. A minor can ( 6 ) act only through a guardian ad litem or through a next friend. Hence a minor, who is entitled to file complaint, can file it only if he has the capacity. Indian Majority Act negatively states that he has no capacity when it provided in a non obstante clause that in certain matters the provisions of the Act will not apply. That capacity is made good only if he is represented in the manner provided by law. 9. The title of the complaint extracted in para 3 supra clearly shows that the complaint was filed by minor through his father, (natural guardian) which was perfectly in accordance with law. 10. Learned Sessions Judge ought to have considered that the loan was paid by the cheque duly signed by the father on behalf of the minor. Thus, the minor son was entitled to get back the amount of loan and not the father. Accordingly, repayment cheque was issued in favour of the minor. It was deposited in the account of the minor, operated by natural guardian, father. The cheque was returned by the banker of the accused ( 7 ) for want of funds. Notice of demand under Section 138 of the N. I. Act was issued by minor through his natural guardian father. Ultimate nonpayment of demand resulted in criminal complaint on behalf of the minor. In the complaint, the minor son is the complainant and not his father. 11. Learned Sessions Judge ought to have understood that when the hand loan was given from the account of the minor son, repayment had to be made to the minor, as such, the cheque was rightly issued in the name of the minor. The cheque was deposited in the account of the minor. The cheque was returned to the bank, wherein the minor was holding his account. The minor could have acted only through his natural guardian because of his legal incapacity. Failure to notice this basic concept of law has resulted in protracting this litigation resulting in an undue financial advantage to Respondent No.1. 12. In view of this matter, I have no option but to allow this revision by setting aside the impugned order and to is remit the matter back to ( 8 ) the Lower Appellate Court shall direction to hear and decide the appeal within one month from the date of service of the notice to Respondent No.1. Lower Appellate Court will make an endeavour to see that Respondent No.1 is served by adopting more than one modes of service and appeal is decided with expeditious despatch. 13. In the result, revision application is allowed in terms of this order with cost quantified in the sum of Rs. 10,000/- which Respondent no.1 shall pay to the complainant. JUDGE. JUDGE. JUDGE.