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Allahabad High Court · body

2006 DIGILAW 2043 (ALL)

ANIL KUMAR JAISWAL v. STATE OF U. P.

2006-08-23

BARKAT ALI ZAIDI

body2006
( 1 ) THIS is an application for relief under S. 482, Cr. P. C. ( 2 ) IN this application the grouse of the complainant is that Complaint Case No. 171 of 1998 Ashoka Kumar Bhargawa v. Anil kumar Jaiswal under S. 138, the Negotiable instruments Act, 1881 (hereinafter called the act) against the applicant pending in the court of Additional Chief Judicial Magistrate vi, Allahabad filed on basis of the 6 cheques, one of which is only in the name of complainant and the rest in the name of different payees, is not maintainable. The reason being the complainant cannot be said to toe the "payee or holder in due course" of those 5 cheques which are in the name of different payees and the trial Court was therefore not competent to take cognizance under S. 142 of the act on basis of those 5 cheques. The order of the trial Magistrate passed on the application of the applicant given in this behalf, on 15-3-1999 is, therefore, not sustainable. ( 3 ) I have heard Sri Sharad Malviya, advocate for the applicant, learned A. G. A. far the State and Sri Rarneshwar Nath, advocate for opposite party No. 2/compiainant. ( 4 ) SECTION 118 of the act in Cl. (g) of which the phrase "that holder is a holder in. due course" has been defined is as follows : " (g) (hat holder is a holder in due course that the holder of a negotiable instrument is a holder in due course. Provided that, where the instrument, has been obtained from the lawful owner, or from, any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker of acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder Is a holder in due course lies upon him. " ( 5 ) THE Magistrate rejected the objection of the applicant with the observation that it is only after evidence has been recorded that it will be possible for the Court to decide whether the applicant is the holder of the five cheques in question within the meaning of the act. " ( 5 ) THE Magistrate rejected the objection of the applicant with the observation that it is only after evidence has been recorded that it will be possible for the Court to decide whether the applicant is the holder of the five cheques in question within the meaning of the act. Trie view of the Magistrate needs to be endorsed, because it is only after the full facts have been revealed by evidence, that, it will be possible to decide whether the opposite party No, 2 is the holder within the meaning of the Act or not? ( 6 ) THE applicants-counsel referred to the case of Mceta Rai (Smt ) v. Gulshan mahajan, 1999 (3) Crimes 621 of Punjab and haryana High Court, where the Court held, that the husband could not be the holder 0f cheque within the meaning of the act because a mere letter of authority issued by the wife, was not sufficient, for that purpose. It was in view of the facts and particular circumstances of the case, that the decision was given. It cannot be applied indiscriminately, to all kinds of cases, because, facts and circumstances of each case, can be different. ( 7 ) IN this case the position is not precisely the same, as in the case supra and, therefore, it will have to be decided on the facts and circumstances of the case as revealed by evidence whether the opposite party No. 2 is a holder of the 5 cheques in question which are in names of different payees, within the meaning of Section 118 (g), and proviso (b) to Section 138 and clause (a) of Section 142, of the Act or not? ( 8 ) THE counsel for the applicant has argued that opposite party No. 2 cannot be a payee or holder in due course within the meaning of the act is a question of law. This contention is not valid because in view of the definition of the holder in due course given in sub-section (g) of Section 118 of the act will have to be investigated whether the requisites given in definition have been fulfilled or not, which can only be done after the evidence has been recorded and all the circumstances have come to light. ( 9 ) THERE can be umpteen diverse situations and they will have to be assessed on the basis of the evidence and circumstances of the case. The contention of the applicants counsel that this is a pure question of law, only, is unacceptable. The Magistrates order must therefore, be upheld. ( 10 ) THE application fails und is dismissed. Application dismissed. .