IMPORTANT POINT
It is only the payee or the holder in due course who can file a complaint under u/s. 138 of Negotiable Instruments Act.

Nambiar, J. -The prayer in the Criminal M.Cs. is to quash C.C. Nos. 971/ 93, 974/93 and 207/94 pending before the Judicial First Class Magistrate IV. Kozhikode. The petitioner in the Criminal M.Cs. is the accused in all the three cases and the respondent is the complainant. Complaints under section 138 of the Negotiable Instruments Act 1881 (for short "the Act") are filed by the respondent against the petitioner and process was issued to him. The petitioner seeks to quash the complaints on the ground that those are not maintainable as the respondent/complainant in as such is not the payee or holder in due course.

2. According to Counsel for the petitioner only the payee or the holder in due course can institute a complaint and as the complainant does not satisfy the definition of either the complaints filed by him should not have been taken compliance of by the Court below.

3. The cheques in question were drawn in favour of R. Ganapathi Iyer, father of the respondent/complainant. The cheques are dated 3-5-1993 and 125-1993. Father of the respondent died on 19-5-1993. It is stated in the complaints that Ganapathi Iyer executed a Will and the complainant and his brother were made the executors under the Will. It. is averred therein that the complaint is filed in his capacity executor of the Will. The cheques were presented for collection on 18-10-1993, but those were dishonoured. Notice calling upon the accused to pay the amount covered by the cheques was issued on 13-10-1993. But, there was no positive response wrote the side of the accused. Hence, complaints were filed.

4. Section 142 of the Act mandates that no Court shall take cognizance of an 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. As a condition precedent for filing a complaint the cheques should have been presented to the Bank within a period of six months from the date on which it was drawn and the payee or the holder in due course of the cheques, as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of receipt of information by him from the Bank regarding the return of the cheque as unpaid. A combined reading/of the provisions of sections 138 and 142 of the Act will make it clear that it is only the payee or the holder in due courses who can file a complaint and that too after notice demanding payment is issued to the drawer of the cheque.

The respondent/complainant cannot be treated as a payee. A payee is defined under section 7 of the Act as a person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid.

The respondent on his own showing is not a payee and the cheques were not drawn in his name. He admits in the complaint that the payee in whose name the cheques were drawn was his father. Now, we will consider whether the respondent is a holder in due course. The term “holder in due course" is defined under section 9 of the Act as follows:

"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 holder, 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".

It is clear from the definition that a person to be a holder in due course, he must come into possession of the instrument for consideration. There is no averment in the complaint that the respondent has paid consideration to his father and thereby he became the holder in due course. As already stated, the allegation of the complainant is only that he was an executor under the Will of his father and so he is entitled to collect the proceedings of the cheques. The executor of the Will cannot be treat