2018 (7) TMI 1799 - HC - Indian Laws

Cheque bounced - Maintainability of Complaint - case of petitioner is that the complainant, who has filed the complaint, was neither the payee of the subject cheques nor the holder in the due course of the subject cheques - Held that - It is an admitted position that the landlord of the property is Friends Motels Pvt. Ltd. The payee in the subject cheques is also Friends Motels Pvt. Ltd. The complaint does not state as to how the complainant Mr. Arun Dwivedi has become the holder in due course or is entitled to receive the amount payable in the cheques - There is no further averment as to how a presumption under 139 of the Act would arise in favour of the complainant. Even on the cheques, there is no endorsement that the same were negotiated/indorsed in favor of the complainant. The Complainant is neither the payee nor the holder in due course of the subject cheques and thus not entitled to either issue the statutory notice or file the complaint under section 138 of the Act. Since no demand was made by the payee or holder in due course, of the subject cheques, by issuance of a statutory notice under section 138, the petitioner has not committed any offence under section 138 of the Act. Since no complaint has been filed by the either the payee or the holder in due course, the court could not have taken cognizance of the alleged offence under section 142 of the Act. The petitioner was entitled to a discharge under Section 251 Cr.P.C., as the basic ingredients of Section 138 of the Act are not satisfied - petition allowed - decided in favor of petitioner.

Issues:
Impugned order dismissing revision petition, Dismissal of application seeking discharge under Section 251 Cr.P.C.

Analysis:
The petitioner challenged the order dismissing the revision petition and the application seeking discharge under Section 251 Cr.P.C. The petitioner argued that the complaint was not maintainable as the complainant was neither the payee nor the holder in due course of the cheques. The respondent/complainant contended that he was authorized by the payee company to file the complaint.

The complaint was filed by the respondent in his individual name, although he claimed to be a Director of the payee company. The complaint alleged that the accused tenants issued cheques in arrears of rent. However, there was no explanation of how the complainant became entitled to receive the cheque amount or how he was the holder in due course.

The legal notice under Section 138 was also issued by the complainant in his own name, without clarifying his entitlement as the holder in due course. The court referred to the statutory provisions of Section 138 and emphasized that the demand and complaint must be made by the payee or the holder in due course.

The court highlighted that the complainant was neither the payee nor the holder in due course of the cheques, rendering him ineligible to issue the statutory notice or file the complaint under Section 138. The reliance on the Board of Directors' resolution was deemed irrelevant as the complaint was filed in the individual name of the Director, contrary to the resolution's directive.

Consequently, the court found that the petitioner was entitled to a discharge under Section 251 Cr.P.C. as the essential elements of Section 138 were not met. The impugned orders were set aside, and the petitioner was discharged of the alleged offence under Section 138 of the Act. The court did not address the issue of territorial jurisdiction due to the finding on the primary issue.

In conclusion, the court's decision was in favor of the petitioner, emphasizing the importance of the complainant being the payee or the holder in due course for a complaint under Section 138 to be valid. The judgment provided a detailed analysis of the legal provisions and factual circumstances to reach a reasoned conclusion in the matter.

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