2018 (7) TMI 1799

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....hereby, the application of the petitioner under Section 251 Cr.P.C. seeking discharge in a complaint filed under Section 138 Negotiable Instrument Act, 1881 (hereinafter referred to as the Act) was dismissed. 2. Learned counsel for the petitioner submits that the subject complaint was not maintainable inasmuch as the complainant, who has filed the complaint, was neither the payee of the subject cheques nor the holder in the due course of the subject cheques. 3. Learned counsel for the respondent/complainant submits that the complaint was maintainable inasmuch as the complainant was the Director of the payee Company and had been authorised by the payee Company to file the complaint. 4. The payee named in the subject cheques, in resp....

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....es. There is no further averment as to how a presumption under 139 of the Act would arise in favour of the complainant. Even on the cheques, there is no endorsement that the same were negotiated/indorsed in favour of the complainant. 8. The Statutory legal notice under Section 138 of the Act has also been issued by Mr. Arun Dwivedi in his own name. Notice is also silent as to how he is the holder in due course or is entitled to receive the amount payable in the cheques.   9. Section 138 of the Act lays down 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 fro....

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....f other liability" means a legally enforceable debt or other liability."   10. Proviso (b) of section 138 stipulates that nothing in the section 138 shall apply unless 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.   11. For section 138 to apply the demand and the complaint has to be made by the payee or the holder in due course. Even Section 142 stipulates that no court shall take cognizance of an offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque.   12. Section 7 of the Act defines "Payee" as the pe....