1. Heard Shri A.S. Zarekar learned Advocate for the petitioner and Shri C.R. Deshpande, learned Advocate instructed by Ms. Sabahat Kazi, learned Advocate for the Respondent.

2. Rule. By consent, rule made returnable forthwith and the writ petition is taken up for final disposal at the admission stage.

3. This writ petition is filed by original accused for quashing and setting aside the order passed on 7.8.2008 by the learned Judicial Magistrate, First Class, Ahmednagar on complaint Exhibit 1 in S.T.C. No.1467 of 2008 filed by present Respondent, whereby process was issued against the Petitioneraccused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, "N.I.Act").

4. The point that is raised in this petition is "Whether one of the heirs of deceased payee can file complaint under Section 138 of the Negotiable Instruments Act. ?".

5. It is no more disputed at this stage that on 28.8.2007, petitioner accused had issued a cheque bearing No. 034452 for Rs.3,00,000/= (Rupees Three lakhs only) in favour of father of the Respondent complainant. Balbhir, father of the Respondent complainant died on 5.9.2007 in a vehicular accident.

On 5.2.2008, the Respondent complainant presented the said cheque for encashment to the Punjab National Bank. However, the same was dishonoured and returned with endorsement "insufficient funds". On 3.3.2008, the respondent complainant issued legal notice through Advocate calling upon the petitioner accused to pay the amount due under the said cheque. However, since the accused failed to pay the amount, the respondent filed criminal case bearing S.T.C. No.1467 of 2008 in the court of J.M.F.C., Ahmednagar against the accused for having committed offence punishable under Section 138 of the N.I. Act. The learned Magistrate passed an order on 7.8.2008 issuing process and it is this order which is challenged in the present writ petition.

6. Shri Zarekar, learned Advocate for the petitioner submitted that as far as taking of cognizance of offence punishable under Section 138 of the N.I.Act is concerned, as per Section 142 (a) of the N.I.Act, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no court can 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. Learned Advocate Shri Zarekar further submitted that in this case the respondent complainant is neither the payee nor holder in due course and as such, he was not entitled as per Section 142 (a) of the N.I.Act to file complaint for offence punishable under Section 138 of the N.I. Act.

7. Learned Advocate Shri Zarekar further referred to section 7 of the N.I.Act which defines various terms under the N.I.Act, including the term "payee". Payee means a person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid. The term "Holder in due course" is defined in Section 9 as 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 indorsee 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 the person from whom he derived his title. In this case, admittedly the cheque was issued by the petitioner accused in the name of father of the respondent complainant. It is, therefore, argued by Advocate Shri Zarekar that the respondent complainant could not be "payee" in terms of definition as under Section 7 of the N.I.Act. According to him, respondent complainant had not for consideration beco me possessor of the dishonoured cheque and, therefore, he is not "holder in due course" as defined in Section 9. It is not that the cheque was endorsed by the deceased Balbhir in the name of present respondent complainant. For all thease reasons