1 appln 40 of 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.40 OF 2011 The Federal Bank Ltd .. Applicant. -versus Mrs. V.K. Radhamaniamma and ors .. Respondents. Mr. S.V. Kotwal, with Mr. A.J. Kapadnis i/b Mr M.S. Mohite, for the Applicant. Mr. Rajesh More, APP for the Respondent State. Mr. Nitin Gangal, for respondent Nos 1 and 2. CORAM: R.C. CHAVAN, J. DATED: 5th July, 2011 P.C. 1. This is an application for leave to file appeal against the acquittal of the respondents, ordered by the learned Metropolitan Magistrate, 12th Court, Bandra, Mumbai, for the offence punishable under Section 138 of the Negotiable Instrument Act. The facts are that the respondent No.1 was indebted to bank by availing overdraft facility. Respondent No.2, her son, who has independent business, issued cheque payable, in the name of his mother. This cheque was purchased by the applicant bank from respondent No.1 and proceeds thereof were to be applied for liquidating the dues recoverable from respondent No.1. The cheque was presented and was dishonoured. The learned Magistrate held that the applicant bank would not become holder in due 2 appln 40 of 2011 course and therefore, acquitted the respondents. Learned counsel for the applicant placed relied on the judgment of this Court in, D. H. Bhatter -vs- State Bank of Bikaner & Jaipur and ors 2002 (4) Crimes 354, to advance argument that the endorsement is not necessary on a cheque payable to order while negotiating cheque. He relied on the the observations made by Hon’ble Court in para 9 which reads as under:- “9. A mere reference to Section 9 of the Negotiable Instrument Act makes it clear that “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 endorsee thereof. Thus a purchaser of the cheque is a holder-in- due-course and it is not necessary that in favour of purchaser of the cheque there should be an endorsement also. It is contended by the petitioner that the bank is the purchaser of the cheque and as such the bank is holder-in-due-course of the cheques. This argument therefore need not detain us any further.” (emphasis supplied) 2. The judgment does not hold that even cheque payable to order can be negotiated by mere delivery. In fact after quoting section 9 of the Negotiable Instrument Act, the Court could not have so held. The facts of the case in do not show that the cheque was payable to a particular person or 3 appln 40 of 2011 was cheque payable to order. In that case the cheque might have been bearer cheque. Therefore, the learned Judge came to such conclusion. In the case at hand the cheque is not payable to bearer and there was no endorsement of payee in favour of the bank. Thus, the complainant bank was not endorsee of the cheque. No fault can be found in the view taken by the learned Magistrate. Leave refused. Appeal dismissed. (R. C. CHAVAN, J.)