IMPORTANT POINT
Legal representatives of payee or holder in due course of a dishonoured cheque for insufficient funds can file complaint u/s. 138 of the Negotiable Instruments Act.

J.B. Koshy & A. Lekshmikutty, JJ.,—Can the legal representatives of the payee file a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’) is the question to be considered in this case. It is alleged that petitioner in this case borrowed an amount of Rs. 25,000/- from the husband of the respondent and issued a cheque No.556736 drawn on Syndicate Bank, Sreekaryam Branch dated 4.4.1995 for the discharge of that debt. Respondent’s husband (payee) died on 15.4.1995 after 11 days of issuance of the cheque. Respondent wife and the legal heirs of the late Sudevan presented the cheque before the said Bank on 29.9.1995. On 4.10.1995 the cheque was returned unpaid to the respondent/ complainant on account of insufficiency of funds in the account of the petitioner/accused. On the same day, respondent issued a legal notice calling upon the petitioner/accused to repay the amount covered by the cheque. The notice was acknowledged by the pctitioner/accused on 9.10.1995. Since cheque amount was not paid, a complaint dated 6.11.1995 was filed before the Judicial Magistrate of the First Class-l11, Thiruvananthapuram. It was numbered as S. T.No. 4 of 1996. For issuance of another cheque for Rs. 80,000/- another complaint was filed which was numbered as S.T. No.6 of 1996. For issuance of cheque for Rs. 50,000/-. S.T. No.7 of 1996 was filed. This Criminal Miscellaneous Case was filed under Section 482 of the Code of Criminal Procedure for quashing the above Annexures A1 to A3 private complaints filed under Section 138 of the Act contending that the complainant cannot file such complaints as she is not the payee or holder in due course. Petitioner also relied on the decision of this Court in Koya Moideen v. Hariharan1. It is also pointed out that this Court has already quashed a similar complaint filed by the same complainant in Cri. M.C. No.3382 of 1999 in view of the decision reported in Koya Moideen v. Hariharan. (supra). When the matter came up before the learned Single Judge, Mr. R. Basant (J.), noticing the decisions in Janaki v. State of Kerala2 and Devi v. State of Kerala3, wherein this Court held that, in law, a legal representative is not a different person from the deceased, the learned Judge was of the opinion that the ‘payee’ in Sections 7 and 142 of the Negotiable Instruments Act would include the legal heirs of a deceased payee and the matter was referred to the Division Bench.

2. Mere issuance of a cheque without funds in the Bank will not constitute an offence under Section 138 of the Act. To constitute an offence under Section 138, the cheque should be dishonoured for insufficiency of funds if the cheque is presented within a period of six months from the date on which it is drawn to the period of its validity whichever is earlier. Two other conditions are also to be satisfied to constitute an offence under Section 138 of the Act. Those conditions which are relevant for the purpose of this case are contained in provisos (b) and (c) of Section 138 of the Act which are as follows:

“(b)the payee or the holder in due course of the cheque 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 fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid, and

(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.”

The above would show that the payee or the holder in due course should make a demand for the payment of such money by giving notice in writing to the drawer of the cheque within fifteen days of the receipt of information regarding dishonour of the cheque and drawer of such cheque should have failed to make payment of the said amount of money to the payee or the holder in due c