IMPORTANT POINT
Where complaint u/s. 138 N.I. Act was filed by a person other than payee and no mention was made in complaint about his locus, complaint was liable to be dismissed.

N.K. Mody, J.—By aggrieved by the order dated 17.7.2009 passed by JMFC, Indore in Criminal Case No.15233 of 2009, whereby the application filed by the petitioner for dismissal of the complaint was dismissed, the present petition has been filed.

2. Short facts of the case are that the respondent filed a complaint under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as “NI Act”) alleging that a cheque was issued by the petitioner for a sum of Rs. 1,00,000/- on 10.9.2007 in favour of Kudrat Patel, father of the respondent. It was alleged that the cheque was presented by the respondent for collection through its banker which was returned by the concerned bank with a memorandum bearing remarks “account closed”. It was alleged that vide notice dated 20.11.2007 demand was made by the respondent but neither the notice was replied nor the cheque amount was paid, thus, petitioner committed an offence alleged to have been committed under Section 138 of NI Act. It was prayed that after taking cognizance of the offence, petitioner be convicted. Upon presentation of complaint cognizance of the offence was taken by learned Trial Court and notices were issued to the petitioner. Upon issuance of notice the petitioner approached this Court by filing a petition for quashment of complaint which was numbered as M.Cr.C. No.2846 of 2009 and was disposed of by this Court vide order dated 24.4.2009 wherein it was directed that the petitioner shall move an appropriate application before the learned Court below. It was further directed that if such an application is filed, then, after giving an opportunity of hearing to the respondent the same shall be decided by learned Court below in accordance with the fact that cognizance of the offence has already been taken against the petitioner. In compliance of the order passed by this Court application was flied by the petitioner before learned Court below and after giving an opportunity of hearing to the respondent the application was dismissed by learned Court below vide order dated 17.7.2009 against which the present petition has been filed.

3. Learned Counsel for the petitioner argued at length and submits that the impugned order passed by the learned Trial Court is illegal, incorrect and deserves to be set aside. It is submitted that from the complaint it is evident that the alleged cheque was issued by petitioner in favour of Kudrat Patel while the complaint has been filed by respondent/Hanif Patel who is claiming himself to be the son of Kudrat Patel. It is submitted that in the complaint it is nowhere stated by the respondent that when Kudrat Patel died. It is submitted that in the complaint it is also nowhere stated how the respondent is entitled to prosecute the petitioner while the cheque was issued in favour of Kudrat Patel. Learned Counsel submits that in the facts and circumstances of the case, the impugned order passed by the learned Trial Court whereby the application filed by the petitioner was dismissed is illegal, incorrect and deserves to be set aside. Learned Counsel placed reliance on a decision of Kerala High Court in the matter of P.K, Koya Moideen v. G. Hariharan, 1996 CrLJ 3153 wherein the cheque was drawn in the name of father of complainant and subsequent to issuance of cheque father of complainant died and thereafter the complaint was filed by the complainant claiming payment in the capacity of executor of father’s Will Hon’ble Kerala High Court held that genuineness of Will also to be adjudicated and such executed of Will, therefore, cannot be termed as “holder in due course.” It is submitted that in the facts and circumstances of the case, petition filed by the petitioner be allowed and the impugned order passed by learned Trial Court be set aside and the prosecution initiated by the respondent be quashed.

4. Mr. Balendu Dwivedi, learned Counsel for the respondent submits that cognizance of the offence has already been taken by learned Trial C