A legal heir of a deceased payee is considered the 'holder in due course' and can file a complaint under Section 138 of the Negotiable Instruments Act, 1881.

This criminal revision is directed against the order dated 6-6-2017 passed by the learned Chief Judicial Magistrate, Belonia dismissing the complaint filed by the petitioner against the respondent U/s 138, Negotiable Instruments Act, 1881 (“the Act” for short) on the ground that the petitioner is neither the payee nor the holder in due course.

2. The facts giving rise to this revision are that the original holder of the cheque in question, namely, the late Sankar Prasad Sarkar died where-in-after his wife i.e. the petitioner deposited the cheque with the Bank which dishonoured it. This prompted her to send a demand notice to the respondent (Sri Milan Pal) for payment of the due amount, but the respondent refused to do so. It was the case of the petitioner that she and her children succeeded to the properties left behind by the deceased. The trial court, however, questioned the locus standi of the petitioner to file the application under the Act and passed the impugned order. Aggrieved by this, the criminal revision is filed by the petitioner.

3. Both Mr. D. Bhattacharjee, the learned counsel for the petitioner, and Mr. P. Sahu, the learned counsel for the respondent, were heard at some length. The question as to whether the legal heir of a payee can file a complaint under Section 138 of the Act is no longer res integra. This Court in Smt. Rikta Pal Sarkar v. Milan Pal (Crl. Rev. P. No. 33 of 2017) vide the judgment dated 9-8-2017 following the decision of the Apex Court in AC Narayanan v. State of Maharashtra & another, (2014) 11 SCC 790, held that the legal heir of the deceased is the “holder in due course” of the cheque and could, therefore, maintain a complaint under Section 138 of the Act. The only rider is that the legal heir should have knowledge about the transaction in question so as to enable him/her to bring on record the truth of his/her grievance. Two more decisions of various High Courts can also be cited in this connection, namely, Ajay Kumar Agarwal and another v. State of Jharkhand and another, 2003 Cri LJ 3088 and Chandra Babu v. Remani, 2003 (2) KLT 750(DB). The learned Chief Judicial Magistrate has overlooked the decision of this Court and has in the process improperly exercised his jurisdiction in dismissing the complaint. The observations of the Division Bench of the Kerala High Court in Chandra Babu (supra), with which I am in respectful agreement, succinctly explained the legal position:

“8. There is no dispute that the proposition that legal representative can file a suit for realising the amount. A Full Bench of the Punjab and Haryana High Court after considering large number of decisions in Padam Parshad v. Lok Nath Ishwar Sarup and Ors., (AIR 1964 P&H 497 FB) held as follows:

"(5)....... It will be apparent from the definition of holder' that it means a person entitled in his own name to the possession of the negotiable instrument and to receive or recover the amount due thereon from the parties thereto. Section 78 provides as to whom payment should be made of the amount due on the promissory note in order that the maker or acceptor thereof is discharged from liability thereon. On the interpretation of the aforesaid two sections, a plethora of case law has grown up, but it appears to us that so far as the case of an heir of a deceased holder is concerned, the rule of law seems to be well settled. The preponderance of judicial opinion is for the view that an heir of a deceased holder can bring a suit on the basis of the promissory note though such an heir cannot be said to be a holder within the meaning of Section 8. The decided cases, which will be noticed hereafter, are almost unanimous that there is no bar created by the aforesaid two sections in the way of such an heir to sue on the basis of the promissory note and recover the debt due to the deceased holder".

After quoting the decision of the Allahabad High Court in Rai Ram Kishore v. Ram Parshad, MANU/UP/0095/1952 : AIR 1952 All. 24