The complainant must be the payee or holder in due course to file a complaint under section 138 of the Negotiable Instruments Act.

JUDGMENT :

P. Rajamanickam, J.

This Appeal has been filed by the complainant against the judgment of acquittal passed by the Judicial Magistrate No. III, Salem in C.C. No. 248 of 2003 dated 26.04.2005.

2. The appellant herein has filed a private complaint under section 200 of Cr.P.C, 1973 stating that the accused had borrowed money for constructing her house from the complainant's wife, agreeing to repay the same with interest. He further stated that when his wife demanded the accused to repay the said amount, the accused with a view to discharge the said debt has issued a cheque for a sum of Rs. 1,00,000/- dated 01.03.2003. As the complainant's wife does not have account in her name, endorsed the said cheque in favour of her husband and requested him to realise the money, hence, the complainant had presented the said cheque in the Bank, for encashment as a holder in due course on 10.03.2003, but the said cheque was returned on 11.03.2003 as funds insufficient. Hence, the complainant has issued a statutory notice on 29.03.2003 calling upon the accused to pay the amount within 15 days from the date of receipt of the said notice. He further stated that though, the accused had received the said notice on 03.04.2003, he did not pay any amount within 15 days from the date of receipt of the said notice and hence, he filed a private complaint to punish the accused under section 138 of the Negotiable Instruments Act.

3. Based on the aforesaid complaint, the learned Judicial Magistrate No. III, Salem, has taken the case on file in C.C. No. 248 of 2003 and issued summons to the accused. On appearance of the accused, copies were furnished and the accused was questioned with regard to the offence said to have been committed by him. The accused pleaded not guilty and hence, the learned Judicial Magistrate No. III, Salem, has tried the case. During trial, the complainant examined himself as PW 1 and marked Ex. P1 to P4 in the case.

4. The evidence on the side of the complainant in brief is as follows:-

The complainant has been examined as PW 1 and he has stated that the accused for constructing her house borrowed a sum of Rs. 1,00,000/- from the complainant's wife and with a view to discharge the said loan, the accused has issued a cheque (Ex. P1) dated 01.03.2003 for a sum of Rs. 1,00,000/-. He has further stated that since the wife was not having bank account, she made over the said cheque in his favour and hence, he had presented the said cheque in the bank for encashment on 10.03.2003 and the same was returned on 11.03.2003 as funds insufficient in the accused's account. The bank return memo was marked as Ex. P2. Thereafter, he has issued a statutory notice on 29.03.2003 requesting the accused to pay the amount within 15 days from the date of the receipt of the said notice. Office copy of the said notice has been marked as Ex. P3. The accused has received the said notice on 03.04.2003 and the Postal acknowledgement has been marked as Ex. P4 and thereafter, the accused neither paid the amount nor sent any reply. Therefore, he filed a private complaint to punish the accused under section 138 of the Negotiable Instruments Act.

5. The evidence on the side of the complainant was closed with PW 1 and thereafter the accused was questioned under section 313 of Cr.P.C, 1973 with regard to the incriminating circumstances found in the evidence of PW 1. The accused denied the same as false and also examined the wife of the complainant as DW 1. The endorsement made on Ex. P1 has been marked as Ex. D1.

6. The learned Judicial Magistrate, after considering the materials placed before her, found that the complainant cannot be treated as either payee or the holder in due course and as such he is not entitled to file a complaint under section 138 of the Negotiable Instruments Act. She also found that the complainant was not authorized by her wife to file a case on behalf of his wife and as such, the complaint filed by the complainant is not maintainable. Accor