The main legal point established in the judgment is that the proprietor or partner of a firm can maintain a complaint under Section 138 of the N.I. Act in his own name as a holder in due course of the cheque.

JUDGMENT :

1. Heard Sri Ajay Kumar Pandey, learned counsel for the applicant, Sri Jai Raj, learned counsel for opposite party no.2 and Sri Pankaj Srivastava, learned A.G.A. for the State.

2. The instant application U/S 482 has been filed seeking quashing the impugned summoning order dated 05.12.2014 as well as entire proceedings of Complaint Case No.3473 of 2014 (Prasant Sharma Vs. Abhishek Jain), under Section 138 of Negotiable Instruments Act, 1881, Police Station Hariparvat, District Agra, pending in the Court of Additional Chief Judicial magistrate, Court No.VIII, Agra.

3. Learned counsel for the applicant submits that in the instant case, the complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act") has been filed by the opposite party no.2, whereas he was not the payee of the said cheque, therefore, the complaint is not maintainable. Learned counsel for the applicant relying upon the provisions of Section 142 (1) (a) of the N.I. Act submits that such complaint is maintainable only on behalf of the payee or the holder in due course of the cheque. Learned counsel for the applicant submits that the opposite party no.2 herein is neither the payee nor the holder in due course of the cheque as has been defined in Section 7 and 9 of the N.I. Act, 1881.

4. Learned counsel for the opposite party no.2, on the other hand, submits that undisputedly the cheque in the instant case was issued in favour of Raj Rajeshwari Enterprises which is the proprietorship of the opposite party no.2, who has filed a complaint being the proprietorship firm. Thus, the complaint by the opposite party no.2 in his individual name is maintainable as he becomes holder in due course of the said cheque. In support of submissions made by learned counsel for the applicant he placed reliance upon the judgment dated 03.03.2011 of Apex Court in the case of Criminal Appeal No.643 of 2011 (Milind Shripad Chandurkar Vs. Kalim M. Khan & another).

5. However, learned counsel for the applicant disputes that the said Raj Rajeshwari Enterprises is not a proprietorship but a partnership firm, therefore, he submits that complaint in the individual name of one of such partnership firm is not maintainable. Learned counsel for the applicant further submits that such Raj Rajeshwari Enterprises is not a partnership firm, is not disputed by the opposite party no.2 in the counter affidavit filed by him.

6. Learned A.G.A. for the State also submits that even partner or the proprietor of a firm is holder in due course of the cheque, therefore, such complaint is maintainable in the name of a partner or a proprietor of such firm in individual capacity as well. Learned A.G.A. for the State has placed reliance on a judgment of Apex Court in Rathish Babu Unnikrishnan Vs. State (NCT of Delhi), 2022 SCC OnLine SC 513.

7. Having heard learned counsel for the parties, this Court has carefully gone through the record of this case and from perusal of the record it is found that it will be relevant to take note of Sections 7, 9, 142 (1) (a) of the N.I. Act, which reads as under:-

"Section 7 of N.I. Act, 1881 defines "payee" as the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid

"Section 9 defines "holder in due course" as any person who for consideration became the possessor of a cheque if payable to a bearer or the payee or endorsee thereof

Section 142 (1) (a) provides that the complaint under Section 138 N.I. Act is to be filed either by the payee of the said cheque or the holder in due course of the said cheque."

8. From the aforesaid provisions, it is crystal clear that a complaint under Section 138 of the Act can be filed by the payee of the cheque or the holder in due course. The definition of holder in due course is wide enough and includes any person, who comes in possession of the said cheque for consideration.

9. In the case of Milind Shripad Chandurkar (supra), the Apex Court has held