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Himachal Pradesh High Court · body

2005 DIGILAW 164 (HP)

DINESH KUMAR v. S. S. KAUSHAL

2005-05-25

M.R.VERMA

body2005
JUDGMENT M.R. Verma, Judge (Oral):— By this application under Section 378 (4) of the Code of Criminal Procedure the applicant/complainant (hereafter referred to as the applicant) has prayed for grant of leave to appeal against the judgment dated 16.11.2004, passed by the learned Additional Chief Judicial Magistrate, Shimla whereby the complaint filed by the applicant against the respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereafter referred to as the Act,) has been dismissed and the respondent has been acquitted of the accusations. 2. Briefly facts relevant for the purpose of the present discussion are that on finding a prima facie case under Section 138 of the Act against the respondent on the basis of a complaint made by the applicant accusations under Section 138 of the Act were put to the respondent who denied the same. The applicant then led evidence. Statement of the accused was recorded under Section 313 of the Criminal Procedure Code. On consideration of the material on record, the trial Court found that the applicant was not a holder in due course of the cheque and accordingly dismissed the complaint and acquitted the respondent. Aggrieved by the order, the applicant has preferred this application. 3. I have heard the learned counsel for the parties and have also gone through the records. 4. The only submission made by the learned counsel for the applicant is that the applicant was the holder in due course of the cheque which was payable to the bearer, therefore, the complaint could not have been dismissed on the said ground. On the other hand, it has been submitted for the respondent that the cheque was payable to self and not to the bearer and the word bearer1 was admittedly scored off from the cheque which is evident even to the naked eye, therefore, the complaint has been rightly dismissed. 5. The provisions of Section 142 (a) of the Act make it crystal clear that a Court can take cognizance of an offence under Section 138 of the Act only if the complaint is filed in writing by the payee or the holder in due course of the cheque. 6. Section 9 of the Act defines holder in due course as a person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer. 7. 6. Section 9 of the Act defines holder in due course as a person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer. 7. It is evident on a bare perusal of Ext. P-1 cheque in dispute that it is payable to self and not to the bearer which word in the cheque had been struck off. It is admitted by Dinesh Bhushan (CW-1) that the cheque in question is payable to self and the word bearer1 had been struck off and that a cheque which is payable to self, cannot be got enchased by the bearer if not so authorized. It is admitted even by the applicant (CW-2) that the word bearer1 in the cheque had been struck off. In view of these admissions and the contents of the cheque Ext. P-1, the applicant cannot be said to be the holder in due course of the cheque. Therefore, the complaint filed by the applicant was not competent. 8. In view of the above, this is not a case fit for grant of leave to appeal as prayed for. 9. As a result, this application is dismissed.