Result: Petition is dismissed.

Nagamohan Das, J.

In this petition the petitioner has prayed for setting aside the order dated 11.10.2005 in C.C. No. 289/2005 on the file of Judicial Magistrate, I Class, Bagepalli, taking cognizance of the offence punishable under Section 138 of Negotiable Instruments Act (for short ‘the Act’) and issuing process to the petitioner.

2. The respondent contends that the petitioner for consideration received issued a cheque on 02.11.2004 for a sum of Rs. 1,48,000/- in favour of her husband AG. Sadananda Bhat. The payee A.G. Sadananda Bhat presented the cheque issued by the petitioner for encashment through his bankers and the same came to be returned with an endorsement that ‘the cheque is unpaid for want of funds’ . On 09.05.2005 the fact of dishonour of the cheque was intimated to A.G. Sadananda Bhat by his Bankers. On 14.05.2005 A.G. Sadananda Bhat got issued a lawyer’s notice to the petitioner intimating about the dishonour of the cheque and demanded to pay the amount due under the cheque. Thereafter on 15.05.2005 A.G. Sadananda Bhat died. On 30.05.2005 the petitioner got issued a reply notice through his lawyer denying his liability to pay the amount due under the cheque. After the demise of A. G. Sadananda Bhat the respondent herein who is the wife and legal representative of the deceased filed a private criminal complaint against the petitioner under Section 200 Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act. The Trial Court under the impugned order dated 11.10.2005 had taken cognizance of the offence, registered the case in C.C. No. 289/2005 and issued process to the petitioner. Aggrieved by this order of the Trial Court in taking cognizance of the offence and issuing process the petitioner is before this Court in this petition.

3. The only contention of Sri. Sunil S. Desai, Learned Counsel for the petitioner is that the legal representatives of deceased payee are not entitled to maintain a petition under Section 200 Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act. He contended that under Section 142 of the Negotiable Instruments Act only the payee or holder-in-due-course are competent to maintain a petition for the offence punishable under Section 138 of Negotiable Instruments Act. Respondent is neither payee nor holder in-due-course and therefore she is not entitled to file a petition under Section 200 Cr.P.C. Reliance is placed on the following decisions.

1. Vishwa Mittel’of M/s. Vijay Bharat Cigarette Stores, Dalhousie Road, Pathankot Vs. O.P. Poddar and Others, (1983) 4 SCC 701.

2. N. Harihara lyer Vs. State of Kerala, 2000 Cr.L.J. 1251.

3. G.F. Hunasikattimath Vs. State of Karnataka, ILR 1990 Kar 3881.

4. Union of India and Another Vs. Deoki Nandan Aggarwal, AIR 1992 SC 96.

4. Per contra Sri. Rudraiah, learned Counsel for the respondent contended that the respondent being the legal representative of deceased A.G. Sadananda Bhat is entitled for possession, recovery and realisation of the amount due under the cheque in question and is competent to maintain a petition under Section 200 Cr.P.c. Reliance is placed on the following decision.

Punjab and Sind Bank Vs. Vinkar Sahakari Bank Ltd., and Others, (2001) 7 SCC 721.

5. Heard arguments on both the side and perused the entire petition papers.

6. The Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act No. 66/1988) has inserted Chapter XVII comprising of Section 138 to 142 in the Act with effect from 1st April 1989. Further by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act 2002 (Act No. 55/2002) Section 143 to 147 are inserted in the Act.

The object of this amendment is to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques, with adequate safeguards to prevent harassment of honest drawers. Section 138 specifies the

commission of offen