JUDGEMENT

1. In this petition filed under Section 482 Cr.PC, a complaint filed under Section 138 of N. I. Act (for short “the Act”) read with Section 420 RPC, pending before the court of Chief Judicial Magistrate, Bandipora (“Trial Court” for short) is sought to be quashed along with proceedings emanating therefrom.

2. The brief facts leading to the filing of this petition is that impugned complaint has been filed against petitioner herein before the Trial Court on the ground that petitioner had agreed to sell his house at Sidhra, Jammu, to respondent for a sum of Rs.45.00 Lacs. The petitioner received an advance amount of Rs.13.50 lacs. He also received an amount of Rs.9.50 at his residence B. B. Cantt. Indira Nagar, Srinagar, and rest of the amount of Rs.4.00 Lacs had been taken by his wife through her bank account No. 2776-SB on four different dates. When he approached the complainant and demanded the balance amount of the money, the respondent asked the accused for possession of his house at Sidhra Jammu, to which the accused did not agree as the said house was registered in the name of his wife, Razia Jan.

3. The case set up by the respondent is that the petitioner retracted from the agreement to sell in respect of his house and also did not return the amount of Rs.13.50 lacs, which was received by him as earnest money. He issued a cheque for an amount of Rs. 5.00 lacs and handed over the same to him. The said cheque was in the name of Shri G. Q. Shah, who is brother of the complainant. The cheque was presented before the Bank for encashment but was dishonoured; whereafter notice was issued to the petitioner. Despite the service of notice, the petitioner did not pay the amount. Hence the complaint came to be filed. The process has been issued against the accused/petitioner and proceedings are pending before the Court of Chief Judicial Magistrate, Bandipora.

4. Heard learned counsel for the parties and perused the record.

5. The case of the petitioner is that the respondent cannot maintain the complaint as he is neither the payee of the cheque nor the holder in due course and a complaint could be filed only by a person who is either a “payee of the cheque” or “holder in due course”. The complaint has been filed before the Trial Court, on the basis of a cheque issued by petitioner in favour of brother of complainant, namely, Shri G. Q. Shah, and not in the name of complainant, which cannot be maintained.

6. The word payee has been defined in Section 7 of the Act, reads as under:

“7……”Payee”.-The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”.

7. Section 7 of the Act provides that a person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”.

8. “Holder” of cheque is defined under Section 8 of the Act, which reads as under:

“Holder-The “holder” of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.

Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction.

9. As Section 8 of the Act provides that “holder” of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.

10. Who can be “holder in due course” is defined in Section 9, which reads as under:

“9. “Holder in due course.- “Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorse thereof, if (payable to order), before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived hi