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TMI Blog2015 (7) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... , towards the price of coconuts purchased from the complainant/Society, ₹ 16,000/- was due to the complainant/Society and in discharge of the said liability, the said cheque was issued. Therefore, the liability under the cheque was towards Devi Vilasom Kettuthengu Sangham and not towards Karunakaran Nair. But Ext. P1 cheque is seen issued in favour of Karunakaran Nair. It means that though, Karunakaran Nair represents the Society as the Secretary of the Society, the complainant is the Society. Going by Section 138 of the Nl Act, the statutory language is that where any cheque drawn by a person on the account maintained by him with a banker for payment of any amount of money to another person from out of that account for the dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Nl Act - the impugned judgment passed by the Trial Court and confirmed by the Appellate Court would stand set aside and the petitioner is acquitted of the offence under Section 138 of the Nl Act. This revision petition is allowed. - Crl. R.P. No. 4635 of 2006 - - - Dated:- 28-7-2015 - K. Harilal, J. For the Appellant: George Sebastian For the Respondent: K.N. Chandrababu, P.M. Natesan and Public Prosecutor ORDER K. Harilal, J. 1. The revision petitioner is the accused in CC No. 7/2002 on the files of the Judicial First Class Magistrate's Court, Vaikom. The above complaint was filed by the first respondent herein alleging the offence punishable under Section 138 of the Negotiable Instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence. The legality and propriety of the concurrent findings of conviction and modified sentence are under challenge in this revision petition. 2. Though, this revision petition is filed on various grounds challenging the concurrent findings of conviction and modified sentence on merits, the learned Counsel for the revision petitioner mainly canvassed the point that the complainant/Society has no locus standito file the present complaint alleging the dishonour of Ext. P1 cheque, which was issued in favour of one Karunakaran Nair, who represented the complainant Society. According to the learned Counsel, the complainant is neither the payee nor the holder in due course. A complaint under Section 138 of the Nl Act can be filed either by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonour of a cheque, which was issued to the Secretary in his name, allegedly in discharge of a liability to the Society? 5. Going by the complaint, obviously, it is seen that the complainant is Devi Vilasam Kettuthengu Sangham and the Sangham is represented by its Secretary Sri. Karunakaran Nair. But going by Ext. P1 cheque, it is seen that the payee is one Karunakaran Nair. The case of the complainant is that, towards the price of coconuts purchased from the complainant/Society, ₹ 16,000/- was due to the complainant/Society and in discharge of the said liability, the said cheque was issued. Therefore, the liability under the cheque was towards Devi Vilasom Kettuthengu Sangham and not towards Karunakaran Nair. But Ext. P1 cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. Thus, the sub-section (b) clarifies that the payee or the holder in due course alone has the right to proceed against the drawer for the commission of the offence under Section 138 of the Nl Act. According to Section 7 of the Nl Act, the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called payee . Similarly, according to Section 9 of the Nl Act, 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 thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorisation made or the resolution passed by the Society to the Secretary of the Society to receive the cheque in his name does not confer him the status of either payee or holder in due course so long as the cheque stands drawn in the name of the Secretary. It follows that the Trial Court should not have taken cognizance on the complaint, which was filed by a person other than payee or the holder in due course. Needless to say, the Trial Court should have dismissed the complaint at the threshold itself, on maintainability in view of Section 142 of the Nl Act for want of locus standi. The Courts below miserably failed to consider the right or locus standi of the complainant in its correct perspective in view of Sections 138 and 142 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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