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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 ..... uts from the complainant/Society and towards the price of the coconuts purchased upto July, 2000, a sum of Rs. 16,000/- was due from the accused to the Society and in discharge of the said debt, the accused issued Ext. P1 cheque in favour of the Secretary of the Society, Sri. Karunakaran Nair and, when the cheque was presented for encashment, it was dishonoured and returned for want of sufficient funds. So also, despite the receipt of notice under Section 138(b), of the Nl Act, the accused has not repaid the cheque amount. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for two months and to pay a compensation of Rs. 18,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to the Society as contended by the complainant. Therefore, the complaint itself was not maintainable as the complainant had no locus standi to file such a complaint. But the Court below miserably failed to consider the maintainability of the complaint under law. 3. Per contra, the learned Counsel for the first respondent advanced arguments to justify the findings in the impugned judgments under challenge. The learned Counsel for the first respondent submits that the complaint was filed on the basis of a resolution passed by the complainant/Society. Therefore, even though the payee in the cheque is Karunakaran Nair, the complainant/Society has locus standi to file the present complaint on dishonour of the cheque which was issued in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Society, the complainant is the Society. 6. 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 discharge, in whole or in part, of any debt or liability, is returned by the bank unpaid due to want of sufficient funds, he shall be deemed to have committed an offence and shall be punished accordingly. In short, the cause of action enabling to file a complaint arises in favour of the payee when any cheque drawn by a person for payment of any amount to his favour is dishonoured for want of sufficient funds. 7. According to Section 142 of the Nl Act, notw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect existed in the title of the person from whom he derived his title. 9. The proposition that can be culled out from the mandatory language under Sections 142 and 138(b) of the Nl Act is that the locus standi to file a complaint under Section 138 of the Nl Act is given to the payee or holder in due course of the dishonoured cheque only and no Court shall take cognizance of the offence punishable under Section 138 of the Nl Act, unless the complaint is filed by the payee or holder in due course of the dishonoured cheque. 10. When applying the above proposition in the instant case, indisputably, the payee is Karunakaran Nair and Devi Vilasom Kettuthengu Sangham, the complainant, is neither a payee nor a holder in due course. It follows ..... X X X X Extracts X X X X X X X X Extracts X X X X
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