IMPORTANT POINT
Merely because a person is joint holder of bank account with “Payee” in whose favour cheque is issued, he/she cannot be said to be Holder in due course of cheque who can have locus standi to file complaint for dishonour of cheque.

M.R. Shah, J.—Present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicants herein original accused Nos.2 to 5 to quash and set aside the complaint being Criminal Case No.3861/2006 pending in the Court of learned Judicial Magistrate First Class, Anand for the offence under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as “NI Act”).

2. That respondent No.2 herein through her Power of Attorney holder has filed the impugned complaint being Criminal Case No.3861/2006 against the applicants original accused Nos.2 to 5 and one another for the offence under Section 138 of the NI Act for dishonour of cheque dated 17.4.2006 for an amount of Rs.10 lacs contending interalia that the aforesaid amount of Rs.10 lacs was advanced by her husband on 7.12.2004 and one writing was executed on 7.12.2004 by the original accused No.1—partnership firm through its partner and administrator and for the said dues the cheque in question dated 17.4.2006 was given (post-dated) by the original accused No.1—partnership firm signed by original accused No.2. It is further averred in the said complaint that her husband Jaykrishna Prabhudas Thakkar has expired and both of them have joint bank account in Bank of Baroda, Anand Branch and therefore, as a joint account holder in the bank as “holder in due course” of the said cheque, she has deposited the-said cheque in their joint account which has been dishonoured for which the statutory notice was served and despite service of the same, the cheque amount is not paid and therefore, it is alleged that the applicants have committed the offence under Section 138 of the NI Act. That in the said complaint, the learned JMFC, Anand has directed to issue summons against applicants and other for offence under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied with the aforesaid, the applicants herein—original accused Nos.2 to 5 have preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.

3. Shri S.I. Nanavaty, learned Senior Advocate appearing on behalf of the applicants has vehemently submitted that as such the original complainant Smt. Kantaben Jaykrishnabhai Thakkar cannot be said to be a payee or holder in due course of the cheque and therefore, she could not have filed the impugned complaint as she has no locus standi to file the complaint against the applicants for the offence under Section 138 of the NI Act for dishonour of the cheque of which she is neither the payee nor holder in due course.

3.1 Relying upon the definition of “Payee” and “Holder in due course”, it is submitted that the original complainant cannot be said to be a “payee” or “holder in due course” as per Sections 7 and 9 of the NI Act and therefore, considering Section 142 of the NI Act, it is submitted that as the original complainant is neither the payee nor holder in due course of the cheque, which has been dishonoured, she had no locus standi to file the impugned complaint and therefore, the learned Magistrate has committed an error in taking cognizance of the said complaint and the offence. Shri Nanavaty, learned counsel appearing on behalf of the applicants has relied upon the decision of the Bombay High Court in the case of Vishnupant Chaburao Khaire v. Kailash Balbhir Madan reported in 2010 Cri.L.J. 2166 and it is submitted that as held by the Bombay High Court, a person named in the instrument, to whom or to whose order money is by instrument directed to be paid can be said to be “payee” as provided under Section 7 of the NI Act. It is further submitted that in the said decision, Bombay High Court has also held that only a person who for consideration is entitled to possession of bearer cheque or payee or endorse thereof can be said to be “holder in due course” as provided under Section 9 of the NI Act. It is submitted that as held by the Bombay High Court, complaint