A complaint under Section 138 of the Negotiable Instruments Act can only be filed by the 'payee' or the 'holder in due course'. A legal representative cannot be considered as a 'holder' under the Act. A valid notice under Section 138(b) is required for the offence to be attracted.

K. Hema, J.

1. This petition is filed to quash the complaint filed against the petitioner alleging offence under section 138 of Negotiable Instrument, Act (for short 'the Act').

2. A complaint was filed against petitioner by second respondent herein, on the allegation that Rs. 6,00,000/- was handed over to accused to be given to seek admission in a college. Out of this amount, only Rs. 4,00,000/- was given by accused to the college authorities. He promised to pay the balance amount of Rs. 2,00,000/- also to them. Since the amount was not paid by accused, complainant's father somehow raised the amount and paid it.

3. Towards the accused's liability to return Rs. 2,00,000/- to complainant, petitioner issued a cheque for Rs. 2,00,000/- in the name of the complainant. The cheque on presentation to the bank was dishonoured with the endorsement "funds insufficient". A notice was sent to accused demanding repayment but the amount was not paid. Hence, a complaint was filed alleging offence under Section 138 of the Negotiable Instrument, Act.

4. Learned counsel for the petitioner submitted that the complaint is not filed by the 'payee' or 'holder in due course' and hence the Court ought not to have taken cognizance of the offence under Section 138 of the Negotiable Instruments Act. Learned counsel for the 2nd respondent submitted that the complainant is the 'payee' and in the cause title, the name of the second respondent (complainant) and his address are shown. Therefore, it cannot be said that the complaint is not filed by the 'payee' and hence there is no bar in taking cognizance of the offence, it is submitted. He also cited a decision reported in Ashok Kumar v. Dr. T.R. Bhageerathi (2009 CRI.L.J.221) to argue that the Court need not proceed on technicalities in an offence of this nature.

5. Learned counsel for 2nd respondent argued that the accused has no case that he is not liable to pay the amount covered by the cheque. He has no case that the amount stated in the cheque is due to the person who is entitled to receive the same. He has also no case that he had sufficient fund in his bank account or that the cheque issued by him is not dishonoured. He has also no case that the cheque is not drawn by him. In such circumstances, from the allegations made in the complaint, it is clear that a cheque was drawn by the accused and it was dishonoured for insufficiency of funds and therefore, the offence under section 138 is attracted, especially since the complaint is filed by the 'payee', it is argued.

6. It is also argued that on the allegations made in the complaint, if the court finds that an offence is prima facie constituted, the Court need not insist that the 'payee' or 'holder in due course' himself must file the complaint. It is sufficient that the complaint is filed by a person who is entitled to receive the amount. In support of his argument, he placed reliance upon a decision reported in Central Bank of India v. M/s. Saxon Farms, (1999) (3)KLT 484 (SC) and argued that in the said case, a complaint was filed by the wife of the 'payee' who was no more and the Court found that the complaint filed by the wife who is not the 'payee' was perfectly in order.

7. It was held in the decision cited above that the wife was entitled to receive the money covered by the cheque and she can be treated as the 'holder' of the cheque and in view of section 118(g) of the Act, she can be treated as 'holder in due course'. Therefore, according to learned counsel for respondent, this complaint cannot be said to be invalid or not maintainable only because the payee's father filed the complaint.

8. It is also pointed out that it is specifically mentioned in Annexure-II notice that the amount was paid by both the son and father together. Therefore, the father is also entitled to get the amount, even though the cheque is issued in the name of the son, who is the second respondent herein. Since he is also entitled to get the amount from the accused, applyi