M. S. RAJENDRA PRASAD, J.

( 1 ) THIS Criminal Revision Petition by the accused filed under Section 397 (2) Cr. P. C. is directed against the order dated 6. 6. 2001 passed in Cr. R. P. No. 91/2000, on the file of the Principal sessions Judge, Bagalkot, wherein the learned Sessions Judge had allowed the revision petition filed by the accused and consequently, had dismissed the complaint filed by the respondent herein in PC 22/2000 for the offence under Section 138 of the Negotiable Instruments Act, wherein the learned Magistrate had taken cognizance of the case against the accused for the said offence, questioning the legality and propriety of the said order by the learned Sessions Judge.

( 2 ) THE Court has heard the arguments of Sri R. L. Patil, the learned Counsel for revision petitioner and Sri Veerendra Patil, learned Counsel on behalf of the respondent.

( 3 ) THE learned Counsel for revision petitioner strenuously contended that the material on record clearly shows that the order impugned is illegal and improper. The learned Sessions Judge was not at all justified in setting aside the order of the learned Magistrate. The material on record shows that the complaint filed before the learned Magistrate had been maintainable in law in view of the fact that the complainant is the payee under the instrument in question, for all practical purposes. The learned Magistrate was totally justified in passing the order impugned. The learned Counsel also contends that on the death of the payee under the cheque in question, the complainant, being none other than the wife of the deceased - payee, had all the legal right to file the complaint and it makes little difference whether the payee had died or had he been alive. The learned Counsel relies upon the following decisions in support of his contentions. 1. 2001 (4) KCCR2817 ; 2. II (2004 )BC235 , [2005 ]123 Compcas560 (Kar ), ILR2003 KAR 4551 , 2004 (1 )Karlj446 ; placing reliance on the ratio laid down in the said decisions, the learned Counsel prayed for allowing the revision petition.

( 4 ) ON the contrary, the learned Counsel for respondents strenuously contended that the material on record clearly shows that the complaint before the learned Magistrate was not at all maintainable in law. The learned Magistrate had not considered the important aspect that on the death of the payee, the criminal action under Section 138 of the Negotiable Instrument Act had come to an end. The learned Counsel also distinguished the decisions relied upon by the learned counsel for the petitioner and submitted that the same are not applicable to the facts and circumstances of the case. The learned Counsel relied upon the decision reported in 1997 company CASES KERALA 399, in support of his contention. Placing reliance on the ratio laid down in the said decision, he prayed for dismissal of the petition.

( 5 ) THE Court had carefully perused the material on record and gave its anxious thoughts over the rival contentions raised at the Bar.

( 6 ) FROM the material on record, it is seen that the accused is stated to have issued the cheque in question towards the discharge of legal liability in favour of the husband of the complainant. The payee had died before presentation of the cheque for payment. Subsequently, the wife of the payee had presented the cheque for payment and the same had been dishonoured for want of sufficient funds. Later on, the legal notice have been exchanged and as here was no payment of the amount under the cheque, private complaint had been filed. The learned Magistrate, after considering the material on record, had ordered for issue of process to the accused. The accused, feeling aggrieved by the said order, had approached the learned Sessions Judge with the revision petition and the learned Sessions Judge had allowed the revision petition and consequently, the private complaint filed by the wife of the payee of the cheque in question came to be dismissed. The Complainant, feeli

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