IMPORTANT POINT
No criminal proceedings can be initiated against legal heirs of deceased/drawer for an offence under Section 138 of Negotiable Instruments Act.

Hon’ble Mr. M.S. Rajendra Prasad, J.—Both these revision petitions involve common question of law, parties in both the cases are common, common arguments have been advanced and hence, common Order is being passed.

2. Both revision petitions filed by the accused under Section 397 read with Section 401 of the Cr.P.C., are directed against the Orders dated 26.11.2001 passed in C.C. Nos. 35574 and 35575 of 2001, respectively, on the file of the 16th Additional Chief Metropolitan Magistrate, Bangalore, wherein the learned Magistrate had taken cognizance of the offence, against the accused-revision petitioner, under Section 138 of the Negotiable Instruments Act, questioning the legality and propriety of the Order impugned.

3. The Court has heard the arguments of Mr. Sathyanarayana Chalke for M/s. Lex Nexus, learned Counsel appearing on behalf of the revision petitioner and Mr. R.P Somashekaraiah, the learned Counsel appearing on behalf of the respondent.

4. The learned Counsel for the revision petitioner strenuously contended that the material on record clearly shows that the Orders impugned are illegal and improper. Patently, the cheques in question had been issued by the husband of the accused and in view of the provisions of the Negotiable Instruments Act, the learned Magistrate could not have taken cognizance of the offence against the accused, particularly, in view of the fact that the legal heirs of the drawer of the cheque cannot be punishable for the offence under Section 138 of the Negotiable Instruments Act. The learned Counsel also contended that, patently, the legal notice has been issued to the accused after lapse of 15 days and as such the proceedings before the Criminal Court will vitiate even on this score. The learned Counsel relied upon the decision in Draupadi Devi alias Maya Sippi v. State of Rajasthan1, in support of his contentions. Placing reliance on the ratio laid down in the said decision, the learned Counsel for the revision petitioner prayed for allowing the revision petitions.

5. On the contrary, the learned Counsel for the respondent strenuously contended that the material on record clearly shows that the Order impugned under the revision petitions is legal and proper. The learned Magistrate after proper application of mind had taken cognizance against the accused for the said offence. The learned Counsel also contended that on the death of the drawer of the cheque the legal heirs of such drawer could be brought on record and the learned Counsel has relied upon the provisions of the Negotiable Instruments Act in support of his contention. The learned Counsel also contended that there is no illegality and impropriety in the Orders impugned. Hence, the learned Counsel prayed for dismissal of the revision petitions.

6. The Court has carefully perused the material on record and has given its anxious thoughts over the contentions raised at the Bar.

7. On perusal of the material on record, it is seen that the complaint under Section 138 of the Negotiable Instruments Act read with Section 200 of the Code of Criminal Procedure Code came to be presented against the present revision petitioner by the respondent, particularly alleging that the husband of the revision petitioner had issued two cheques for Rs. 50,000/- each and on presentation of the said cheques, the same came to be dishonoured and later on legal notices had also been issued to the revision petitioner and thereafter two private complaints have been filed in respect of the said cheques. On perusing the said cheques and on examination of the complaint, the learned Magistrate on 26.1.2001 passed an Order of taking cognizance of the offence against the revision petitioner for an offence under Section 138 of the Negotiable Instruments Act and Ordered for issue of process. This Order has been in challenge under these revision petitions.

8. It is pertinent to mention that, patently, the legal notice had not been issued within 15 days from the date