The main legal point established is that for an offence under Section 138 of the Negotiable Instrument Act, 1881 to be made out, the demand and the complaint must be made by the payee or the holder in due course.

SANJEEV SACHDEVA, J.

CRL.M.C. 1605/2018 & Crl.M.A.5834/2018 (stay)

1. The petitioner impugns order dated 12.02.2018, whereby, the Revisional Court has dismissed the revision petition filed by the petitioner. The petitioner also impugns order dated 12.07.2017, whereby, the application of the petitioner under Section 251 Cr.P.C. seeking discharge in a complaint filed under Section 138 Negotiable Instrument Act, 1881 (hereinafter referred to as the Act) was dismissed.

2. Learned counsel for the petitioner submits that the subject complaint was not maintainable inasmuch as the complainant, who has filed the complaint, was neither the payee of the subject cheques nor the holder in the due course of the subject cheques.

3. Learned counsel for the respondent/complainant submits that the complaint was maintainable inasmuch as the complainant was the Director of the payee Company and had been authorised by the payee Company to file the complaint.

4. The payee named in the subject cheques, in respect of which the complaint under Section 138 of the Act has been filed, is “Friends Motels Pvt. Ltd.”. The respondent/complainant “Mr. Arun Dwivedi” has filed the complaint in his own individual name though in the Memo of Parties it is stated as under:-

“Mr. Arun Dwivedi,

S/o Late Sh. Jagdish Prasad

Director M/s Friends Motels Pvt. Ltd.

Regd. Office 104 Babar Road

New Delhi.

ALSO AT

N-119, Greater Kailash-I,

New Delhi 110048”

5. The averments in the complaint are that the complainant/lessor is one of the Directors of the Company, the absolute legal and beneficial owner of the premises bearing No.104, Babar Road, New Delhi, identified as in the lease deed signed and registered on 27.03.2014 between the complainant and the accused persons. The copy of the lease deed dated 27.03.2014 annexed with the complaint shows that the Lessor described therein is Friends Motels Private Limited.

6. The accused are stated to be the tenants of the subject property and are alleged to be in arrears of rent. It is alleged that when rent was demanded, in discharge of their liability towards arrears of rent, subject cheques had been issued.

7. It is an admitted position that the landlord of the property is Friends Motels Pvt. Ltd. The payee in the subject cheques is also Friends Motels Pvt. Ltd. The complaint does not state as to how the complainant Mr. Arun Dwivedi has become the holder in due course or is entitled to receive the amount payable in the cheques. There is no further averment as to how a presumption under 139 of the Act would arise in favour of the complainant. Even on the cheques, there is no endorsement that the same were negotiated/indorsed in favour of the complainant.

8. The Statutory legal notice under Section 138 of the Act has also been issued by Mr. Arun Dwivedi in his own name. Notice is also silent as to how he is the holder in due course or is entitled to receive the amount payable in the cheques.

9. Section 138 of the Act lays down as under:

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years’, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the tank within a period of six months from the date on which it is drawn or within th