2010 Supreme(Bom) 117

HIGH COURT OF JUDICATURE AT BOMBAY
THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI
Anup Jagdish Agarwal
Versus
Mrs.Nilkunj Lalit Shah & Others
CRIMINAL WRIT PETITION NO.1745 OF 2008 WITH CRIMINAL WRIT PETITION NOS.1746, 1747 AND 1748 OF 2008
Date of Judgment : 22-01-2010

Headnote:Negotiable Instruments Act, 1881 - Sections 118 and 138 - Dishonour of cheque - Complaint - By heirs of deceased, drawee - Issue of process - Challenged - Contention, complaint by legal representatives not maintainable - Held - Contention not tenable - Offence under Section 138 of Act made out - Complainant, successor to estate of original drawee, has right to receive payment due - Holder of Negotiable Instrument, a holder in due course - His complaint maintainable in law - Impugned order issuing process cannot be faulted - Upheld - Petition dismissed. - The contention that the cheques could have been presented only by late Shah and he was only entitled to the proceeds thereof and thus only Mr. Shah fulfills the character of a payee is not tenable. At the prima facie stage, the Court was obliged to proceed on the basis that the complaint in this case is made by the payee or as the case may be the holder in due course. Section 142(a) speaks of only presentation of the complaint in writing by these persons. The term "payee" is defined as the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid. The term "holder of promissory note, bill of exchange or cheque" means any person entitled in his own name to the possession thereto and to receive or recover amount thereof from the parties thereto. Where the note, bill or cheque is lost or destroyed, the holder is the person so entitled at the time of such loss or destruction. The term holder in the 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 order, before the amount mentioned in it became payable and without giving sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. There are presumptions which are forming part of the very same statutory scheme. If Section 118 of the Act is perused, it is falling under Chapter (XIII) entitled "Special Rules of Evidence". Section 118 opens with words "until the contrary is proved".Therefore until the contrary is proved, it is presumed that the holder of a negotiable instrument is a holder in due course.

       Therefore if the terms referred by me hereinabove, which are referred in Section 118(g) are perused together, it is apparent that the presumption would be applicable in the facts of the present case. The persons who have filed the complaints are in possession of the cheques on the basis that they are the heirs of the late Shah. It is their case that on intestate succession, they have succeeded to his estate. Therefore in the peculiar facts of this case, this presumption would be applicable and until the contrary is proved, it cannot be held that the complaint on the face of it was not maintainable in law.

       Negotiable Instruments Act, 1881 - Sections 138 and 118 - Bouncing of cheques - Complaint filed by heirs of deceased, the drawee - Petition against process - Controversy that legal representatives cannot record complaint - Held, Court cannot accept such a complaint - Facts show offence to be punishable under Section 138 of Act - Complainant’s successor to estate of drawee and rightful to get payable payments - Section 118 of Evidence Act anticipates that holder of a Negotiable Instrument is a holder in due time and his complaint is maintainable in-law - Petition is thus to be brushed aside. - It is apparent that the presumption would be applicable in the facts of the present case. The persons who have filed the complaints are in possession of the cheques on the basis that they ar the heirs of the late Shah. It is their case that on intestate succession, they have succeeded to his estate. Therefore, in the peculiar facts of this case, this presumption would be applicable and until the contrary is proved, it cannot be held that the complaint on the face of it was not maintainable in-law.