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2015 DIGILAW 1239 (RAJ)

Labh Chand Jain v. Satish Kumar Meena

2015-07-04

M.N.BHANDARI

body2015
JUDGMENT : M.N. Bhandari, J. By this criminal misc. petition, a challenge is made to the order dated 24.11.2003 passed by the learned Additional Chief Judicial Magistrate, Kishangarh, Ajmer and the order dated 25.7.2007 passed by the learned Additional Sessions Judge, Kishangarh, Ajmer. Vide order dated 24.11.2003, cognizance was taken for offence under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act of 1881'). The petitioner preferred a revision petition to challenge the said order. It was precisely on the ground that offence under section 138 of the Act is not made out as the cheque in question was not given to the non-petitioner complainant but to his father. The complaint can be maintained only by the holder of the cheque in due course and not by a stranger. The court below failed to consider the aforesaid aspect and took cognizance of offence by treating cheque in favour of the Hindu Undivided Family (HUF). It is based on previous transaction between the parties. The cheque in question was not in the name of 'Karta' of the HUF but in the name of individual. On the death of the father, non-petitioner complainant had no authority to file a complaint under section 138 of the Act of 1881. It is more so when during life time of the holder of the cheque, he did not file complaint under section 138 of the Act. A reference of the judgment of the Kerala High Court in the case of "Koya Moideen v. Hariharan", (1996) 2 BC 33 has been given. The prayer is made to quash the impugned orders. 2. Per contra, learned counsel for non-petitioner complainant submits that the courts below have passed detailed orders for taking cognizance of the offence and dismissal of revision petition. It was after considering that there was business relations between the two parties. The business by the non-petitioner was through HUF. The cheques were given in the name of the father being 'karta' and, on his death, the non-petitioner registered the complaint being member of HUF. Taking into consideration the aforesaid, the complaint was held to be maintainable. Accordingly, prayer is made to dismiss the petition. Reference of various judgment of different High Courts has been given to maintain the orders passed by the courts below. 3. I have considered rival submissions of the parties and perused the record. 4. Taking into consideration the aforesaid, the complaint was held to be maintainable. Accordingly, prayer is made to dismiss the petition. Reference of various judgment of different High Courts has been given to maintain the orders passed by the courts below. 3. I have considered rival submissions of the parties and perused the record. 4. It is not in dispute that the cheques in question were given in the name of individual and not for HUF. The individual died after dishonour of the cheques but before lodging the complaint. The fact available on record however shows not only transaction between the HUF and the petitioner but payment thereupon through cheques in the name of individual who was 'karta' of HUF. In the background aforesaid, cognizance of offence on a complaint by the member of HUF was taken. Reference of various judgments have been given. 5. In the case of Koya Moideen (supra), on the death of payee leaving will, the son was not held entitled to file a complaint under section 138 of the Act of 1881. If the facts of this case and the ratio propounded in the judgment supra are considered, it shows that holder in due course would be a person who comes in the possession of the instrument for consideration. In the instant case, non-petitioner complainant could demonstrate and shown that he came in possession of the cheques as a member of HUF. It is looking to the business transaction between the two parties. The payment of the cheques was for consideration in lieu of transaction. The definition of 'holder in due course' is also quoted hereunder for ready reference - "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, if 2 [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." 6. The Jharkhand High Court in the case of "Ajay Kumar Agarwala & anr v. State of Jharkhand & anr.", 2003 Cri LJ 3088 allowed such proceedings through the son though in the said case, initiation of the proceedings was by the father but he died during the pendency of the complaint. The Jharkhand High Court in the case of "Ajay Kumar Agarwala & anr v. State of Jharkhand & anr.", 2003 Cri LJ 3088 allowed such proceedings through the son though in the said case, initiation of the proceedings was by the father but he died during the pendency of the complaint. In reference to the definition of 'holder in due course' the son was permitted to prosecute the pending complaint. Reference of section 256 CrPC was given to substantiate the argument and the relief. 7. The judgment of the Hon'ble Apex Court in the case of "Ashwin Nanubhai Vyas v. State of Maharashtra & anr", AIR 1967 SC 983 was also referred. A further reference of the judgment of the Hon'ble Apex Court in the case of "M/s Modi Cements Ltd v. Shri Kuchil Kumar Nandi", (1998) 3 SCC 249 has been given, wherein, issue was decided in reference to section 139 of the Act of 1881. The presumption exist in favour of the holder unless it is controverted. 8. In view of the judgments aforesaid and taking into consideration facts of this case, I do not find that a case is made out to interfere in the impugned orders. Hence, the petition for challenge to the impugned orders thus fails and is dismissed. Petition Dismissed.