Daya Chaudhary, J. :— This order of mine shall dispose of three Petitions bearing Crl. Misc. No. M-30961 of 2010, Crl. Misc. No. M-30964 of 2010 and Crl. Misc. No. M-4069 of 2011 as the facts and the law point involved in all the three Crl. Misc. No. M-30961 of 2010 (2) cases are similar. For the sake of convenience, facts are being taken from Crl. Misc. No. M-30961 of 2010. 2. The subject matter of challenge in the present petitions are Criminal complaints as well as summoning orders. Complainant-respondent-Bank filed criminal complaint No. 1029-A/2 dated 22.12.2009 against the petitioners under Sections 138/141 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’) alleging therein that various credit facilities as well as over-draft facilities were availed by M/s Atul Paints. It is further alleged that in discharge of its legal liability to adjust the over due amount, three cheques bearing, No. 47368 dated 28.10.2009 amounting to 3 lacs; cheque No. 473676 dated 28.10.2009 for 4 lacs and cheque No. 473677 dated 28.10.2009 for Rs. 4 lacs were issued by the petitioners in favour of complainant-Bank. On presentation of said cheques for encashment, the same were dishonoured and returned vide memo dated 29.10.2009 with the remarks “Funds insufficient”. Accordingly, the complaint under Sections 138 and 141 of the Act was filed against the petitioners and the petitioners were summoned to face the trial vide order dated 24.12.2009. 3. The complaint as well as summoning order have been challenged on the ground that petitioner No.1 is a Private Limited Company, namely, Germane Technologies and it has two Directors, namely, Atul Ahluwalia and Anand Sagar, however, the complaint has been filed against Atul Ahluwalia only and M/s Atul Paints has not been made an accused in the complaint. Learned counsel for the petitioners submits that cheques in dispute were paid by Germane Technologies to M/s Atul Paints and there is no legally enforceable debt or legal liability towards the respondent-Bank and no offence is made out under Section 138 of the Act. Learned counsel further submits that Germane Technologies had ordered for some goods from M/s Atul Paints and the said cheques were paid by Germane Technologies to M/s Atul Paints as an advance. Learned counsel further submits that Germane Technologies had ordered for some goods from M/s Atul Paints and the said cheques were paid by Germane Technologies to M/s Atul Paints as an advance. However, when the goods were received by Germane Technologies, the same were not in accordance with the order placed and it was for this reason the payment was cancelled. Learned counsel also contends that the complaint against the petitioner-company is not maintainable as the respondent-Bank has a right to recover from M/s Atul Paints only. 4. Learned counsel for the respondent opposed the contentions raised by learned counsel for the petitioners on the ground that Germane Technologies Private Limited and M/s Atul Paints are run by Atul Ahluwalia and his father Anand Sagar Ahluwalia and both are the Directors of accused-company, who stood as guarantors for the loan availed by Atul Ahluwalia in the name of his proprietor concerned M/s Atul Paints. The guarantee forms were executed by both the Directors of the Company i.e. Atul Ahluwalia and Anand Sagar Ahluwalia in favour of the Bank and there was default in repayment of the loan amount. Atul Ahluwalia executed the cheque in question being the Director and authorized officer of the guarantor Company. The complaint has rightly been filed and on the basis of allegations in the complaint, summoning order was passed. Heard the arguments advanced by learned counsel for the parties and have also gone through the complaint, summoning order as well as other documents available on the file. Admittedly, a complaint was filed by the respondent-Bank against the petitioners i.e. Germane Technologies Private Limited as well as Atul Ahluwalia. Germane Technologies has two Directors, namely, Atul Ahluwalia and Anand Sagar Ahluwalia. M/s Atul Paints was supposed to make repayment of the loan amount to the respondent-Bank, however, M/s Atul Paints has not been made accused in the complaint. Atul Ahluwalia is the sole proprietor of M/s Atul Paints and he has been arrayed as accused being Director of Germane Technologies. It is also an admitted fact that cheques in dispute were issued by Germane Technologies in favour of M/s Atul Paints and when the goods were not received by Germane Technologies in order, the payment was cancelled. Atul Ahluwalia is the sole proprietor of M/s Atul Paints and he has been arrayed as accused being Director of Germane Technologies. It is also an admitted fact that cheques in dispute were issued by Germane Technologies in favour of M/s Atul Paints and when the goods were not received by Germane Technologies in order, the payment was cancelled. Now the question for consideration before this Court is whether the complaint against Germane Technologies and its Director-Atul Ahluwalia, can be filed when Germane Technologies has no legal liability to repay the loan amount. 5. Admittedly, petitioner No.1-Germane Technologies (India) Private Limited is a private limited company and there are two directors, namely, Atul Ahluwalia and Anand Sagar but the respondent has filed the complaint in question against Atul Ahluwalia only. In the complaint it has specifically been mentioned that M/s Atul Paints was supposed to make payment to respondent-Bank in order to adjust the over-due amount and admittedly, M/s Atul Paints has not been made an accused in the complaint. Atul Ahluwalia is the sole proprietor of M/s Atul Paints and has not been implicated as an accused being Proprietor of M/s Atul Paints but has been arrayed as an accused being Director of Germane Technologies. The cheques in dispute were issued by Germane Technologies in favour of M/s Atul Paints. 6. Section 8 of the Act defines the “Holder”, which is reproduced as under: - “8.Holder.- The “ holder “ of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.” 7. 6. Section 8 of the Act defines the “Holder”, which is reproduced as under: - “8.Holder.- The “ holder “ of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.” 7. Section 9 of the Act defines the “Holder in due course”, which is reproduced as under: - “9.Holder in due course.- “ 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 indorsee thereof, it payable to order, 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.” Section 10 of the Act defines “Payment in due course”, which is reproduced as under: - “10.Payment in due course.- “ Payment in due course” means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned.” 8. From the definitions of the “holder”, “holder in due course” and “payment in due course” in Sections 8, 9 and 10 as extracted above, any person to become a “holder in due course” of a negotiable instrument, the following requirements are to be satisfied : - I. he must be a holder for consideration; II. the instrument must have been transferred to him before it becomes overdue; III. he must be a transferee in good faith and he should not have any reason to believe that there was any defect in the title of the transferor. As per provisions of Section 139 of the Act, the presumption can only be with regard to the fact that the cheque has been issued in order to discharge the initial burden as to the existence of any legally enforceable debt. No doubt under Section 118(a) of the Act, there is a rebuttable presumption stating that every negotiable instrument was made or drawn for consideration and when such instrument is accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration. No doubt under Section 118(a) of the Act, there is a rebuttable presumption stating that every negotiable instrument was made or drawn for consideration and when such instrument is accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration. In the present case, the complainant-Bank cannot be considered as “Holder in due course” of the cheques in dispute as the cheques in dispute were issued by Germane Technologies and not by M/s Atul Paints. Neither M/s Atul Paints has been made accused nor Atul Ahluwalia being sole proprietor of M/s Atul Paints, however, Atul Ahluwalia has been made accused presuming him to be the authorised signatory of Germane Technologies. The cheques in dispute were issued by Germane Technologies in favour of M/s Atul Paints only and no offence is made out under Sections 138 and 141 of the Act. For attracting provisions of Section 138 of the Act, it is to be seen whether there was any existing liability on the part of the petitioner, which required due discharge and also that the cheques in dispute were issued to discharge such existing liability. The Apex Court in U. Ponnappa Moothan Sons vs. Catholic Syrian Bank Ltd., (1991) 1 SCC 113 considered the definition of a holder in due course in the Indian Law vis-a-vis the definition as laid down in the old English case Gill vs. Cubitt, (1824) 3 B&C 466 and it was held thus: - “Under the Indian Law, a holder, to be a holder in due course, must not only have acquired the bill, note or cheque for valid consideration but should have acquired the cheque without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. The condition requires that he should act in good faith and with reasonable caution.” At the end of para 5 the Apex Court held thus: - “The definition makes it clear that to be a ‘holder in due course’ a person must be a holder for consideration and the instrument must have been transferred to him before it becomes overdue and he must be a transferee in good faith and another important condition is that the transferee namely the person who for consideration became the possessor of the cheque should not have any reason to believe that there was any defect in the title of transferor.” In the process, the Apex Court also considered the definition of a holder as per Section 8 of the N.I. Act. On facts, in that case the holder namely the 1st defendant made a necessary endorsement on the two cheques in favour of the plaintiff-bank and the bank in its turn endorsed as “payee account credited”. 9. Under Section 138 of the N.I. Act a complaint can be lodged only by the payee or holder in due course. The Section reads as under: - “138. Dishonour of cheque for insufficiency, etc., of funds in the account: -Where any cheque drawn by a person on an 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 other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, 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 cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability.” 10. In view of the discussions as well as the settled position of law, it is clear that only the payee or the holder in due course can be the complainant when the cheque is dishonoured. The complainant is not a holder in due course and hence the complaint is not maintainable. Accordingly, the petitions are allowed and the complaints as well as summoning orders are hereby quashed. 11. However, the complainant-respondent is at liberty to avail the appropriate remedy against the holder of the cheque.