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2018 DIGILAW 1496 (MAD)

Abdul Mutallib v. A. Noorjahan

2018-04-21

P.RAJAMANICKAM

body2018
JUDGMENT : P. Rajamanickam, J. This Appeal has been filed by the complainant against the judgment of acquittal passed by the Judicial Magistrate No. III, Salem in C.C. No. 248 of 2003 dated 26.04.2005. 2. The appellant herein has filed a private complaint under section 200 of Cr.P.C, 1973 stating that the accused had borrowed money for constructing her house from the complainant's wife, agreeing to repay the same with interest. He further stated that when his wife demanded the accused to repay the said amount, the accused with a view to discharge the said debt has issued a cheque for a sum of Rs. 1,00,000/- dated 01.03.2003. As the complainant's wife does not have account in her name, endorsed the said cheque in favour of her husband and requested him to realise the money, hence, the complainant had presented the said cheque in the Bank, for encashment as a holder in due course on 10.03.2003, but the said cheque was returned on 11.03.2003 as funds insufficient. Hence, the complainant has issued a statutory notice on 29.03.2003 calling upon the accused to pay the amount within 15 days from the date of receipt of the said notice. He further stated that though, the accused had received the said notice on 03.04.2003, he did not pay any amount within 15 days from the date of receipt of the said notice and hence, he filed a private complaint to punish the accused under section 138 of the Negotiable Instruments Act. 3. Based on the aforesaid complaint, the learned Judicial Magistrate No. III, Salem, has taken the case on file in C.C. No. 248 of 2003 and issued summons to the accused. On appearance of the accused, copies were furnished and the accused was questioned with regard to the offence said to have been committed by him. The accused pleaded not guilty and hence, the learned Judicial Magistrate No. III, Salem, has tried the case. During trial, the complainant examined himself as PW 1 and marked Ex. P1 to P4 in the case. 4. The evidence on the side of the complainant in brief is as follows:- The complainant has been examined as PW 1 and he has stated that the accused for constructing her house borrowed a sum of Rs. 1,00,000/- from the complainant's wife and with a view to discharge the said loan, the accused has issued a cheque (Ex. 4. The evidence on the side of the complainant in brief is as follows:- The complainant has been examined as PW 1 and he has stated that the accused for constructing her house borrowed a sum of Rs. 1,00,000/- from the complainant's wife and with a view to discharge the said loan, the accused has issued a cheque (Ex. P1) dated 01.03.2003 for a sum of Rs. 1,00,000/-. He has further stated that since the wife was not having bank account, she made over the said cheque in his favour and hence, he had presented the said cheque in the bank for encashment on 10.03.2003 and the same was returned on 11.03.2003 as funds insufficient in the accused's account. The bank return memo was marked as Ex. P2. Thereafter, he has issued a statutory notice on 29.03.2003 requesting the accused to pay the amount within 15 days from the date of the receipt of the said notice. Office copy of the said notice has been marked as Ex. P3. The accused has received the said notice on 03.04.2003 and the Postal acknowledgement has been marked as Ex. P4 and thereafter, the accused neither paid the amount nor sent any reply. Therefore, he filed a private complaint to punish the accused under section 138 of the Negotiable Instruments Act. 5. The evidence on the side of the complainant was closed with PW 1 and thereafter the accused was questioned under section 313 of Cr.P.C, 1973 with regard to the incriminating circumstances found in the evidence of PW 1. The accused denied the same as false and also examined the wife of the complainant as DW 1. The endorsement made on Ex. P1 has been marked as Ex. D1. 6. The learned Judicial Magistrate, after considering the materials placed before her, found that the complainant cannot be treated as either payee or the holder in due course and as such he is not entitled to file a complaint under section 138 of the Negotiable Instruments Act. She also found that the complainant was not authorized by her wife to file a case on behalf of his wife and as such, the complaint filed by the complainant is not maintainable. Accordingly, the learned Judicial Magistrate No. III, Salem, has acquitted the accused. 7. Aggrieved by the same, the complainant has preferred the present Appeal. She also found that the complainant was not authorized by her wife to file a case on behalf of his wife and as such, the complaint filed by the complainant is not maintainable. Accordingly, the learned Judicial Magistrate No. III, Salem, has acquitted the accused. 7. Aggrieved by the same, the complainant has preferred the present Appeal. When this appeal was taken up today in the morning no representation on behalf of the complainant/appellant and also respondent/accused. Hence, the matter has been passed over and taken up at 3.30 p.m., at that time also no representation on behalf of both the sides. Hence, after perusing the Appeal Memorandum, lower Court judgment and copy of the complaint filed along with the typed set, judgment is being passed. 8. The point for consideration is whether this appeal has to be allowed? 9. The point: In the complaint, the complainant has stated that the accused borrowed a loan from his wife and with a view to discharge the said loan, the accused has issued a cheque dated 01.03.2003 for Rs. 1,00,000/- in favour of his wife. He also stated that since his wife does not have account in her name, she endorsed the said cheque in his favour and requested him to realise the money. The trial Court in Para No. 10 of its judgment has extracted the said endorsement as follows:- "please pass the cheque through my Husband A/C A.N. Abdul Muthallib which I have endorsed". The aforesaid endorsement shows that the complainant's wife has requested the bank to pass the cheque through her husband's account. From that endorsement, it cannot be said that the complainant's wife has made over the cheque in favour of the complainant. 10. "Holder in due course" is defined under section 9 of the Negotiable Instruments Act, which reads as follows:- "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 endorse thereof, if 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." 11. A plain reading of the aforesaid provision shows that "holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque. Whereas, in this case, it is not the case of the complainant that he has paid any consideration for the aforesaid cheque to his wife. Therefore, he cannot claim that he is a holder in due course. 12. As per section 138(b) of the Negotiable Instruments Act, before filing a complaint payee or the holder in due course of the cheque should make demand for the payment of the amount due under the cheque by giving a notice in writing to the drawer of the cheque within 15 days from the date of the receipt of information by him from the bank regarding the return of the cheque he has paid. Whereas, in this case only for the purpose of presenting the cheque in the complainant account, his wife has made an endorsement in the said cheque. That will not give any right to the complainant to claim any amount from the accused. In this case admittedly, the complainant's wife who is being a payee has not sent any notice as contemplated under section 138(b) of the Negotiable Instruments Act. 13. As per section 142(1)(a) of the Negotiable Instruments Act, no Court shall take cognizance of any offence under section 138 of the Negotiable Instruments Act, except upon a complaint in writing made by the payee or, as the case may be, holder in due course of the cheque. In this case, as already pointed out that the payee (complainant's wife) has not filed any complaint. The complainant is not a holder in due course and as such, he is not entitled to file complaint. 14. Admittedly, the complainant's wife has not given any Power of Attorney or authorization in writing to the complainant for filing case on behalf of her and therefore, on that ground also the complaint is not maintainable. 15. For the aforesaid reasons, this Court is of the view that the trial Court has rightly come to the conclusion that the complaint is not maintainable and accordingly, acquitted the accused. There is no infirmity in the aforesaid findings of the trial Court and therefore, the Appeal is dismissed.