The legal representative of the payee of a dishonoured cheque is considered the holder in due course under the N.I. Act and is entitled to maintain a complaint.

1. Heard Mr. D. Bhattacharji, learned counsel appearing for the petitioner as well as Mr. P.K. Biswas, learned senior counsel, assisted by P. Majumder, learned counsel for the respondent.

2. This petition has been filed under Section 397 read with Section 401 of Code of Criminal Procedure [the Cr.P.C. in short] challenging the order dated 20.03.2017 passed in Criminal Revision 13 of 2016 by the Sessions Judge, South Tripura, Belonia affirming the order dated 20.07.2016 passed in NI 11 of 2016 by the Chief Judicial Magistrate, South Tripura, Belonia.

3. The preliminary objection raised by Mr. Biswas, learned senior counsel is that this is the second revision petition and that cannot be maintained in terms of sub-section 3 of Section 397 of the Cr.P.C. which provides that if an application under section 397(1) of the Cr.P.C. is preferred and decided either in the High Court or in the Sessions Court, no further application by the same person shall be entertained by either of the Courts as stated. Mr. Biswas, learned senior counsel is no doubt correct when he has contended that in view of the said restriction, no application under Section 397 read with Section 401 can be maintained by the same petitioner against the same order.

4. This Court after hearing the parties at length has noticed that substantial failure of justice has been occasioned by the impugned order and as such for ends of the justice, this Court is converting this petition into a petition filed under Section 482 of the Cr.P.C. for exercising the inherent power to do the justice.

5. The grievance of the petitioner is that she filed one complaint under Section 138 of Negotiable Instruments Act [N.I. Act] with an application for condoning the delay of 232 days in terms of proviso to Section 142(b) which prescribes that the cognizance of a complaint may be taken by the Court after the prescribed period of limitation, if the complainant satisfied the Court that he had sufficient cause for not making a complaint within such period.

6. The brief fact which is relevant is that the respondent issued a cheque dated 04.09.2015 in favour of one Sankar Prasad Sarkar alias Sankar Sarkar. Immediately after receipt of the said cheque, Sankar Prasad Sarkar alias Sankar Sarkar expired on 10.04.2016. Thereafter, the petitioner, wife of Sankar Prasad Sarkar alias Sankar Sarkar filed the complaint being the holder in due course after complying the requirement to file such complaint but the complaint could not be filed within 30 days from the date of making payment in terms of the notice as issued under Section 138(b) of Negotiable Instrument Act (the N.I. Act, in short). The time stipulated for the payment was 15 days in the notice in conformity to the statute but since the respondent did not pay the amount of the cheque, the petitioner instituted the complaint with a separate petition explaining why the delay had occurred in filing the complaint.

7. Without taking cognizance, the Chief Judicial Magistrate, Belonia by his order dated 20.07.2016 passed in the complaint proceeding being case No. NI 11 of 2016 dismissed the complaint as not maintainable. The relevant part of the said order dated 20.07.2016 is reproduced hereunder:-

“Now the complainant has filed the complaint on the basis of dishonour of cheque on the capacity of the wife/legal heirs of Sankar Prasd Sarkar.

The complainant has filed a separate petition for condonation of delay of 232 days U/s 5 of the Limitation Act read with Section 142(b) of N.I. Act for filing the complaint petition.

The first of all a question is arising as to whether the complaint is filed by the proper complainant.

Section 142 of the N.I. Act reads as follows:

“Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):-

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint in writing , made by the payee or, as the case may be the holder in due course of the cheque