A complaint under Section 138 of the Negotiable Instruments Act can only be lodged by a 'payee' or a 'holder in due course', and a party not falling within these categories cannot maintain the complaint.

1. The revision petitioner is the accused in C.C.No.98 of 1999 on the filed learned Judicial Magistrate, Thriuchegode. The respondent is the complainant therein. That was a complaint taken on file under Section 138 of the Negotiable Instruments Act. Pending trial, the revision petitioner filed Crl.M.P.No.1310 of 1999 to discharge him from the proceedings. That petition was dismissed. Hence, the present revision. Heard Mr.S. Ashok Kumar, learned Counsel appearing for the revision petitioner and Mr.K Manimaran, learned Counsel appearing for the respondent.

2. The only point urged before this Court by the learned counsel for the revision petitioner is that the complaint as presented before the trial court by the complainant is not maintainable in law. In elaborating the submission, the learned counsel would state that, either a "payee" or a "Holder in due course" alone can file the complaint. The present complainant is neither a "payee" nor a "Holder in due course" and therefore the complaint ought not to have taken on file. The learned counsel took me through the necessary facts available in this case as culled out in the complaint itself, in support of his argument, about which I will refer a little later in this order.

3. To a question put to the learned counsel for the revision petitioner as to whether the point put forward before this court was taken in the same substance and form before the Lower Court for discharge, the learned counsel fairly stated that such specific stand was not taken. However he added that the point that was taken before the Lower Court is that, the complainant has no locus standi to file the complaint, and such a point would include the point raised before the court. In view of the fact that the point urged before this Court has not been specifically put forward in the same substance and form before the Lower Court, I wanted to know from the learned Counsel for the respondent as to whether he is willing to meet the point here or he would like to go back to the Lower Court when the accused is given the liberty to raise this point in another discharge petition to be filed by him. The learned counsel for the respondent realising that sending back the matter would again involve judicial time, fairly stated that he is prepared to meet the point here itself. Accordingly, this point was taken up for consideration.

4. The averments in the complaint undisputedly show the following facts: "The complainant is the Managing Partner of Sri Golden Yarn; the accused is doing textile business with the said firm; the accused issued post-dated cheques in favour of one Rathinam, Partner of Sri Golden Yarn for the amounts due by him; the said payee and the complainant endorsed the cheque in favour of the Proprietor of Pearl Fabrics; the Proprietor of Pearl Fabrics presented the Cheques for collection through his Bank; the cheque was returned dishonoured; the proprietor of Pearl Fabrics returned the cheque to the complainant; legal formalities have been complied with and the complaint came to be lodges by the present complainant."

5. Therefore, the undisputed fact as available in the complaint itself is that "the payee" namely, Rathinam endorsed the cheque before the cheque becomes payable to the Proprietor of Pearl Fabrics. Pearl fabrics presented the cheque for collection and it was dishonoured. After such dishonour and return of the cheque, Pearl Fabrics returned the cheque to the complainant and after complying with the statutory formalities, the complainant had lodged this complaint.

6. Notice has to be issued, prior to lodging of a complaint, under Section 138 of the Negotiable Instruments Act. Such notice has to be given only by a "Payee" or a "Holder in due course" of the cheque, as provided for under Section 138 of the Negotiable Instruments Act. Under Section 142 of the Said Act:

"no court shall take cognisance of any offence punishable under Section 138, except upon a complaint, in writing, made by t