Section 138 complaint failed where cheque stood in deceased payee's name and complainant was not a holder in due course.

A complaint under Section 138 of the Negotiable Instruments Act was held not maintainable because the cheque was issued in the name of the complainant's deceased father, who died before presentation and before statutory notice. The complainant could not show that he was the payee or a holder in due course, so he lacked competence to invoke Section 138. On those facts, the essential ingredients of the offence were not established, and the trial court had correctly acquitted the accused. The acquittal was therefore upheld.

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Issues: Whether the acquittal in a complaint under Section 138 of the Negotiable Instruments Act could be sustained when the cheque had been issued in favour of the complainant's deceased father and the complainant was neither the payee nor a holder in due course.

Analysis: The cheque was issued in the name of the complainant's father, who died before the cheque was presented and before the statutory notice was issued. In that situation, the complainant could not establish that he was the payee or a holder in due course within the meaning of the Act. Since the notice under Section 138 was not issued by a person competent to invoke the provision, the ingredients of the offence were not made out. The trial court had, therefore, correctly appreciated the evidence and the legal position while acquitting the accused.

Conclusion: The acquittal was upheld and the complaint under Section 138 was held not maintainable on the facts proved.

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