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TMI Blog2011 (3) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Judicature at Bombay in Criminal Revision No. 656 of 2007 by which the High Court has set aside the judgments and orders of the trial court as well as of the appellate court convicting the respondent No. 1 for the offences punishable under section 138 of the Negotiable Instruments Act, 1881 ('the Act of 1881') and sentencing him for the period, till the rising of the court and to pay compensation of a sum of Rs. 7,00,000. Failing which, the respondent would serve simple imprisonment for a period of six months. 2. The facts and circumstances giving rise to this case are that the appellant complainant claimed to be the sole proprietor of the Firm, namely, Vijaya Automobiles, which had the business of supplying fuel. The firm had suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 1 to suffer simple imprisonment till rising of the court and to pay compensation of Rs. 7,10,000 and in default of payment thereof, to suffer simple imprisonment for six months. It was directed that out of the aforesaid amount of compensation, a sum of Rs. 10,000 be credited to Raigad District Legal Aid Committee. 5. Being aggrieved of the aforesaid judgment and order, the respondent No. 1 accused filed Criminal Appeal No. 85 of 2006. The learned Sessions Judge vide judgment and order dated 18-9-2007, 19-9-2007 dismissed the said appeal, with the amount of compensation being reduced from Rs. 7,10,000 to Rs. 7,00,000. Thus, the direction to credit the amount of Rs. 10,000 to Raigad District Legal Aid Committee was set aside. 6. Being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. None of the said courts held that the appellant was the sole proprietor of the said firm. 10. The High Court has set aside the judgments of the trial court as well as the appellate court in revision only on the ground that as the appellant did not produce any evidence to show that he was the proprietor of the firm, he had no locus standi to file the complaint. 11. The trial Court held that the complainant had deposed that he was proprietor of the Firm, namely, 'Vijaya Automobiles' which had the business of supplying fuel, etc., and the firm had supplied the fuel on credit to respondent No. 1/accused. The court also took note of the pleadings taken by the respondent No. 1/accused that he had given the cheque to the appellant for Vijaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder.... I state that in due discharge of legal liability of the accused as mentioned in foregoing paras, the accused issued one cheque dated 28th April, 2005 in my name, i.e., in the Name M/s. Vijaya Automobiles which was drawn on Development Credit Bank, Kurla Branch, Mumbai-70 bearing Cheque No. 490592, for Rs. 7,00,000." Relevant part of his cross-examination reads as under:- "It is true that till today I had not produced any documentary evidence to show that I am owner of Vijaya Automobiles....Till today I had not produced any documentary evidence to support." 15. The complainant had also examined Shri S. K. Sharma, owner of Vikas Travels under whom the respondent No. l had been working as a sub-contractor. In his cross-examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (c) thereof reads as under : "The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice." (emphasis added) 20. Section 142 provides for taking cognisance of the offence notwithstanding anything contained in Cr.PC which reads as under : "(a)no court shall take cognisance of any offence punishable under section 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." (emphasis added) 21. This court in Shankar Finance & Investments v. State of Andhra Pradesh [2008] 8 SCC 536 dealt with the issue involved herein elabor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General principles of company law or civil law would apply for maintaining the complaint under section 138 of the Act of 1881. 24. In National Small Industries Corpn. Ltd. v. State (NCT of Delhi) [2009] 1 SCC 407, this Court held as under : "The term complainant" is not defined under the Code. Section 142 of the NI Act requires a complaint under section 138 of that Act to be made by the Payee (or by the holder in due course)...' 25. Thus, in view of the above, the law stands crystallised to the effect that person can maintain a complaint provided he is either a "payee" or "holder in due course" of the cheque. 26. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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