JUDGMENT - T.K. CHANDRASHEKHARA DAS, J.:---These two writ petitions arise out of two separate complaints filed by the 2nd respondents before Additional Chief Metropolitan Magistrate, 18th Court, Girgaum, Bombay under section 138 of the Negotiable Instruments Act (hereinafter referred to as the said Act). The Writ Petition No. 1541 of 1999 arises out of Criminal Revision Application No. 671 of 1998 and Complaint C.C. No. 1024/S/97 which arose out of the cheque drawn by the petitioner on 11-11-96 for the amount of Rs. 1,50,00,000/- on the Federal Bank, Fort Bombay and the other Writ Petition No. 1542 of 1999 arises out of Case No. 1708 of 1997 arises out of the cheque drawn by the petitioner on Federal Bank Limited, Fort, Bombay on 3-3-1997 for the amount of Rs. 1,50,00,000/-. Since the common question arises in two petitions between the same parties, I heard these two petitions together and disposed of the same by this common judgement. 2.It is alleged by the respondent Bank namely Indusind Bank Limited that they have provided petitioners Letter of Credit facilities and he availed that facilities to the tune of Rs. 8 crores and towards this liability aforesaid cheques were issued. According to the respondent, cheques were dishonoured for insufficiency of funds and therefore, the complaint came to be filed before the Magistrates Court. For the purpose of the narration of facts I rely on the facts of the Writ Petition No. 1541 of 1999. Exh. "A" to the writ petition is the cheque in question drawn by the petitioner. It is dated 11-11-1997 drawn on Federal Bank Ltd., Fort, Mumbai. In the payee column it is written "Indusind Bank Limited A/c. Credential Finance Limited or Bearer" and is drawn and signed by the Directors for Credential Finance Limited. A discharge application has been filed by the petitioner before the Magistrate. The contention raised by the petitioner before the Magistrate was that in the cheque petitioner himself who is the drawer of the cheque is shown as payee and in order to maintain a complaint, under section 138 of the Act, it should be filed by the payee. Since the respondents are not payee, the complaint under section 138 is not maintainable. The Magistrate accepted this contention and discharged the petitioner by its order dated 14th September, 1998. Since the respondents are not payee, the complaint under section 138 is not maintainable. The Magistrate accepted this contention and discharged the petitioner by its order dated 14th September, 1998. This order was challenged under revision by the respondent in Criminal Revision Application No. 670 of 1998. By an order dated 18th August, 1999, the Revisional Court set aside the order of the Magistrate and directed the parties to go for trial. It is in this circumstances, that the petitioner has approached this Court to challenge the order of Revisional Court by way of this writ petition. 3.Mr. Bulchandani learned Counsel for the petitioner submits that the cheque in question was crossed specially under section 124 of the Negotiable Instruments Act and as per the mandate contained in section 126 the banker on which it was crossed has statutory duty of remitting that amount in the accounts of holder shown on the face of the cheque. In substance, the learned Counsel for the petitioner has contended that even though the respondent's name was shown in the column of payee, actually it is crossed specially authorising respondent bank to encash the cheque and credit in petitioner's account. Therefore, since the respondent is not payee bank, and in fact the payee in this case is petitioner himself, in the absence of complaint filed by the payee as spelt out in section 138 of the Negotiable Instruments Act, the complaint is not maintainable and the Revisional Court has committed serious error in setting aside the order of the Magistrate discharging the petitioner. 4.The learned Counsel for the respondent Mrs. Vandana Jaisingh submits that the cheque in question was issued for discharge of the liability of the petitioners with the Indusind Bank and it is on the understanding and promise made by the petitioner that the cheque was issued in favour of the respondent bank and as it was dishonoured the respondent bank has a cause of action to file the complaint under section 138 of the Negotiable Instruments Act which is maintainable as held by the Revisional Court. 5.I have to examine the rival contentions of the parties in the light of section 138 of the Act and also other provisions of the Act namely section 7, 123, 124, 125, 131 etc. when we examine the cheque objectively, we see two names in the payee's column. 5.I have to examine the rival contentions of the parties in the light of section 138 of the Act and also other provisions of the Act namely section 7, 123, 124, 125, 131 etc. when we examine the cheque objectively, we see two names in the payee's column. In the definition of payee, as defined was in section 7 a cheque cannot be drawn in joint names of two persons. It is clear from the definition of payee which reads as follows : "Payee"---The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the "payee". It is to be noted that the word used is person which is in singular form and therefore, if in the cheque it appears that in Payee's column, two names it does not fall in the ambit of definition of payee because it does not come in the form of the definition of payee. In that context that it can not be called as a cheque at all. This is one way of looking at it. 6.If we look at the way as contended by the petitioner, we have to refer to sections 123 to 131. It appears that even though two names appear in the Payee's column, the former name is of banker and latter name is of account holder in that bank. Then cheque can be treated as one drawn in the name of account holder who is the payee in that cheque. The section 123 deals with cheques crossed generally and section 124 deals with the cheques crossed specially which is relevant in this case which reads as follows : "Section 124 -Cheque cross specially---Where a cheque bears across its face an addition of the name of banker, either with or without the words "not negotiable", that addition shall be deemed a cross, and the cheque shall be deemed to be crossed specially, and to be cross to that banker." 7.Section 125 says where a cheque is uncrossed, the holder may cross it generally or specially to another bankers as agent for collection. So it is clear therefore, that if the cheque is crossed specially to the bankers, then the said banker encash the cheque and remit the amount shown in the cheque to the Account shown in the cheque. So it is clear therefore, that if the cheque is crossed specially to the bankers, then the said banker encash the cheque and remit the amount shown in the cheque to the Account shown in the cheque. In other words if the banker's name is shown in the Payee's column before the account holder's name and it is crossed specially in conformity with section 124 of the said Act, then it can be treated as crossed cheque specially authorising the banker to collect it on behalf of the account holder and remit it to his account. It is also profitable to refer to section 131 and explanation to it of the Negotiable Instrument Act in this context: "131. Non-liability of banker receiving a payment of cheque.---A banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment. Explanation---A banker receives payments of a crossed cheque for a customer within the meaning of this section notwithstanding that he credits his customer's account with the amount of the cheque before receiving payment thereof." The section speaks about the extent of liability of the banker on which the cheque was crossed specially. However, it implies that the banker on whom cheque specifically drawn has a duty to the customer. Explanation to section 131 makes it clear that the bankers receives payments of a crossed cheque for a customer within the meaning of this section notwithstanding that he credits his customer's account with the amount of the cheque before receiving payment thereof. Therefore, if we look upon the cheque in the light of the above statutory provisions, it can be seen that the cheque was specially crossed on the respondent bank with implied directions to send the cheque for encashment and after encashment do credit the amount to the account of the customer. It is not disputed before me by both the parties that it is practice in the commercial world that writing of the cheque as done in Exh. "A" in this case. Admitted facts of the case shows that legal implications arising out of crossing the cheque specially, has been complied with by the respondent bank. It is not disputed before me by both the parties that it is practice in the commercial world that writing of the cheque as done in Exh. "A" in this case. Admitted facts of the case shows that legal implications arising out of crossing the cheque specially, has been complied with by the respondent bank. It is necessary to note that the Revisional Court has approved the argument of the learned Counsel for the petitioner. Learned Revisional Court in para 7 says : "......................... He argued that at the highest the complainant bank can be treated as collecting agent of the amount under the dishonoured cheque payable to the account of accused No. 1 company with the complainant bank. He produced a statement of bank account of accused No. 1 with the complainant bank being Account No. 0001-700960-050 showing credit entry for cheque No. 68573 for Rs. 1 Crore 50 lacs and corresponding debit entry after return of the said cheque." 8.Therefore, what is argued by the Counsel for the petitioner is that by issuing cheque Exh. "A" it is never drawn in favour of the respondent Bank. In fact it was dran in favour of himself and directed the respondent bank to credit in his account maintained in that bank. The Revisional Court has considered this aspect and noted that respondent bank has carried out this direction of the petitioner and credited the amount in his account and thereafter when the cheque was dishonoured, the amount was debited. Therefore, respondent bank cannot argue that the cheque is issued in its his favour. If that be so, there is no necessity for them to credit the amount in the petitioner's account. Therefore, it is crystal clear that the cheque was drawn in all practical and legal sense in petitioner's own name by the petitioner on Federal Bank to be deposited in the account of petitioner which he maintains in the respondent bank. Therefore, by any stretch of imagination, the cheque cannot be treated as the cheque issued by the petitioner in favour of the respondent bank. If the cheque is not issued by the petitioner in favour of the respondent bank, the question whether that was issued for discharge of liability of the petitioner with the respondent bank or was it dishonoured for want of fund etc. became otiose. If the cheque is not issued by the petitioner in favour of the respondent bank, the question whether that was issued for discharge of liability of the petitioner with the respondent bank or was it dishonoured for want of fund etc. became otiose. As is well settled that in order to maintain a complaint under section 138 of the said Act, five main factors have to be established by the complainant before the Magistrate : "(i) The cheque in question should have been issued in discharge of whole or in part of a debt or liability. (ii) The cheque in question should be presented for payment within six months or its specific validity period, whichever is earlier. (iii) The Payee or holder should give notice of demand within 15 days of receiving information of dishonour which may be due to insufficient funds or the amount payable excess the arrangement. (iv) The drawer gets 15 days time after receipt of the notice to make the payment and only if he fails to pay, he is liable to be prosecuted. (v) Complaint can be made only by payee or the holder in due course within one month of the arising of the cause of action." 9.Unless these five factors have been cumulatively established before the Court by the complainant, no complaint under section 138 will be maintainable. If any one of the factors is lacking, such complaint is not maintainable. As I indicated earlier, the complaint filed in this case has not been filed by the payee and the payee has not given any notice. Therefore, two important factors which are required to be present in this case are lacking. Therefore, I have no hesitation to hold that the Magistrate was right in discharging the petitioners in observing that the essential ingredients required to be fulfilled by the complainant to maintain the complaint under section 138 of the Negotiable Instruments Act is lacking in this case. The observation of the learned Additional Sessions Judge that it is admitted case that there is liability by the petitioner towards the respondent bank in his Letter of Credit account and understanding between the parties is that the cheques in question were issued in discharge of the liability and, therefore, this is a matter for trial, is quite erroneous and irrelevant for the reasoning stated above. In the light of the above discussions, I hold that the orders under revision are illegal and erroneous and therefore, liable to be set aside. 10.In the result, writ petitions are allowed. The order passed by the learned Magistrate is upheld and orders passed by the Revisional Court are set aside. Rule is made absolute in the above terms. In the circumstances of the case, no orders as to costs. C.C. expedited. Petitions allowed. -----