IMPORTANT POINT Legal heirs of a cheque holder can file a complaint under Section 138 of the Negotiable Instruments Act after the holder's death, as rights devolve by operation of law.

ORDER

This appeal by special leave is directed against the judgment and order dated 25th April, 2000 passed by the learned Single Judge of the High Court of Madhya Pradesh, Bench at Indore in Criminal Revision No. 1702 of 1999 by which the Revision Petition filed by the appellant was dismissed.

2. The appellant having obtained a loan of Rs. 2,50,000/- (Rupees two lakhs and fifty thousand) from one Dhairyasheel Rao Deshmukh, issued five post dated cheques in the denomination of Rs.50,000/- (Rupees fifty thousand) each in the name of Dhairyasheel Rao Deshmukh. The said Dhairyasheel Rao Deshmukh died. The respondent being the wife and legal heir of the deceased Dhairyasheel Rao Deshmukh presented the cheques to the concerned bank and the same were dishonoured. Thereafter, the respondent gave statutory notice to the appellant for payment of the amount. The appellant did not comply with the demand as 2 required in the notice got issued by the respondent. This was followed by a complaint, filed by the respondent herein, under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") against the appellant. The appellant resisted the complaint by contending that the appellant is neither the payee nor the holder of the cheques in due course and therefore no cognizance can be taken against him. The trial Court rejected the same. The appellant challenged the said order in the High Court. The High Court, after an elaborate consideration of the matter, dismissed the Criminal Revision Petition.

3. The short question that arises for our consideration is, as to whether the Court committed any error in taking cognizance of an offence punishable under Section 138 of the Act against the appellant.

4. There is no dispute before us that the respondent herein (since deceased) is the wife of the deceased Dhairyasheel Rao Desmukh, thus the legal heir of the deceased. It is not the case of the appellant that there are disputes among the legal heirs of the deceased and therefore, the respondent in law, would not be in a position to give a valid discharge in case the amounts are paid to her.

5. It may be necessary to notice Section 142 of the said Act which is reproduced hereunder:

"142.Cognizance of offences--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( 2 of 1974 )—

(a) no court shall take Cognizance of any 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;

(b) such complaint is made within one month of the date on which the cause-of-action arises under clause (c) of the proviso to Section 138 :

Provided that the Cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138."

6. A plain reading of the provision makes it abundantly clear that the Court shall not take cognizance of any offence punishable under Section 138 of the Act except upon a complaint, in writing, made by the payee or, as the case may be, the holder in the due course of the cheque. The expression ‘payee’ is defined under Section 7 of the Act which says "the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the ‘payee’". Section 9 defines the expression ‘holder in due course’ which reads as under:

"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 endorsee thereof, if payable to bearer, or the payee or endorsee thereof, if 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