Judgment : The prayer in the Criminal M.Cs. is to quash C.C. Nos. 971/93, 974/93 and 207/94 pending before the Judicial First Class Magistrate-IV. Kozhikode. The petitioner in the Criminal M.Cs. is the accused in all the three cases and the respondent is the complainant. Complaints under section 138 of the Negotiable Instruments Act, 1881 (for short the Act are filed by the respondent against the petitioner and process was issued to him. The petitioner seeks to quash the complaints on the ground that those are not maintainable as the respondent/complainant is not the payee or holder in due course. According to counsel for the petitioner only the payee or the holder in due course can institute a complaint and as the complainant does not satisfy the definition of either, the complainants filed by him should not have been taken cognizance by the court below. 2. The cheques in question were drawn in favour of R. Ganapathi Iyer, father of the respondent/complainant. The cheques are dated 3-5-1993 and 12-5-1993. Father of the respondent died on 19-5-1993. It is stated in the complaints that Ganapathi lyer executed a will and the complainant and his brother were made the executors under the will. It is averred therein that the complaint is filed in his capacity as executor of the will. The cheques were presented for collections on 18-10-1993, but those were dishonoured. Notice calling upon the accused to pay the amount covered by the cheques was issued on 13-10-1993. But, there was no positive response from the side of the accused. Hence, complaints were filed. 3. Section 142 of the Act mandates that the Courts shall take cognisance of an 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. But, there was no positive response from the side of the accused. Hence, complaints were filed. 3. Section 142 of the Act mandates that the Courts shall take cognisance of an 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. As a condition precedent for filing a complaint, the cheques should have been presented to the bank within a period of six months from the date on which it was drawn and the payee or the holder in due course of the cheques, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheques within 15 days of receipt of information by him from the bank regarding the return of the cheque as unpaid (see Section 138(b) of the Act). A combined reading of the provisions of Sections 138 and 142 of the Act will make it clear that it is only the payee or the holder in due course who can file a complaint and that too after notice demanding payment is issued to the drawer of the cheque. 4. The respondent/complainant cannot be treated as a payee. A payee is defined under section 7 of the Act as a person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid. 5. The respondent on his own showing is not a payee and the cheques were not drawn in his name. He admits the complaint that the payee in whose name the cheques were drawn was his father. Now, we will consider whether the respondent is a holder in due course. 5. The respondent on his own showing is not a payee and the cheques were not drawn in his name. He admits the complaint that the payee in whose name the cheques were drawn was his father. Now, we will consider whether the respondent is a holder in due course. The term holder in due course is defined under section 9 of the Act as follows : "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 endorse thereof if payable to holder, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title." It is clear from the definition that a person to be a holder in due course, he must come into possession of the instrument for consideration. There is no averment in the complaint that the respondent has paid consideration to his father and thereby he became the holder in due course. As already stated, the allegation of the complainant is only that he was an executor under the will of his father and so he is entitled to collect the proceedings of the cheques. The executor of the will cannot be treated as the holder in due course. 6. The will mentioned in the complaint executed by the father of the respondent is not produced. Counsel for the petitioner submits that the genuineness of the will is not admitted. Under these circumstances, without an adjudication regarding the validity of the will, the petitioner cannot be prosecuted. Counsel submits that these are matters for the trial Court to decide in the course of the trial. But, on a reading of the complaints if it is satisfied that the complaints should not have been taken cognisance of by the Court below, it is the duty of this Court to interfere in the matter so that the accused will not be unnecessarily harassed and time and money will not be wasted in meaningless litigation. So, I am inclined to interfere in the matter. 7. In the result, I hold that as the complaints were not made by the payee or holder in due course, they should not have been taken into file by the Court below. Accordingly C.C. Nos. So, I am inclined to interfere in the matter. 7. In the result, I hold that as the complaints were not made by the payee or holder in due course, they should not have been taken into file by the Court below. Accordingly C.C. Nos. 971/93, 974/93 and 207/94 are quashed. 8. The Crl.M.Cs. are allowed as above. Petitions allowed.