Karnataka High Court
Smt. Bhagava vs Sri Kadasiddeshwara Trading Company ... on 1 December, 2003
Equivalent citations: ILR2004KAR367
ORDER
M.S. Rajendra Prasad, J
1. This Criminal Revision Petition by the accused filed under Section 397(2) Cr.P.C. is directed against the order dated 6.6.2001 passed in Cr.R.P. No. 91/2000, on the file of the Principal Sessions Judge, Bagalkot, wherein the learned Sessions Judge had allowed the revision petition filed by the accused and consequently, had dismissed the complaint filed by the respondent herein in PC 22/2000 for the offence under Section 138 of the Negotiable Instruments Act, wherein the learned Magistrate had taken cognizance of the case against the accused for the said offence, questioning the legality and propriety of the said order by the learned Sessions Judge.
2. The Court has heard the arguments of Sri R.L. Patil, the learned Counsel for revision petitioner and Sri Veerendra Patil, learned Counsel on behalf of the respondent.
3. The learned Counsel for revision petitioner strenuously contended that the material on record clearly shows that the order impugned is illegal and improper. The learned Sessions Judge was not at all justified in setting aside the order of the learned Magistrate. The material on record shows that the complaint filed before the learned Magistrate had been maintainable in law in view of the fact that the complainant is the payee under the instrument in question, for all practical purposes. The learned Magistrate was totally justified in passing the order impugned. The learned Counsel also contends that on the death of the payee under the cheque in question, the complainant, being none other than the wife of the deceased - payee, had all the legal right to file the complaint and it makes little difference whether the payee had died or had he been alive. The learned Counsel relies upon the following decisions in support of his contentions.
1. 2001 (4) KCCR2817 ;
2.;
Placing reliance on the ratio laid down in the said decisions, the learned Counsel prayed for allowing the revision petition.
4. On the contrary, the learned Counsel for respondents strenuously contended that the material on record clearly shows that the complaint before the learned Magistrate was not at all maintainable in law. The learned Magistrate had not considered the important aspect that on the death of the payee, the criminal action under Section 138 of the Negotiable Instrument Act had come to an end. The learned Counsel also distinguished the decisions relied upon by the learned Counsel for the petitioner and submitted that the same are not applicable to the facts and circumstances of the case. The learned Counsel relied upon the decision reported in 1997 COMPANY CASES KERALA 399, in support of his contention. Placing reliance on the ratio laid down in the said decision, he prayed for dismissal of the petition.
5. The Court had carefully perused the material on record and gave its anxious thoughts over the rival contentions raised at the Bar.
6. From the material on record, it is seen that the accused is stated to have issued the cheque in question towards the discharge of legal liability in favour of the husband of the complainant. The payee had died before presentation of the cheque for payment. Subsequently, the wife of the payee had presented the cheque for payment and the same had been dishonoured for want of sufficient funds. Later on, the legal notice have been exchanged and as here was no payment of the amount under the cheque, private complaint had been filed. The learned Magistrate, after considering the material on record, had ordered for issue of process to the accused. The accused, feeling aggrieved by the said order, had approached the learned Sessions Judge with the revision petition and the learned Sessions Judge had allowed the revision petition and consequently, the private complaint filed by the wife of the payee of the cheque in question came to be dismissed. The Complainant, feeling aggrieved has come up before this Court with the instant petition.
7. At the outset, it should be mentioned that, by settled principle of law, that the inherent powers of this Court are to be exercised with due care, caution and circumspection and in rarest of rare cases.
8. From the material on record, it is seen that the fact in issue falls into a narrow compass. According to the complainant, the death of the payee of the instrument is of no legal consequence and the legal heir of the complainant could definitely invoke the provisions of Section 138 of the NI Act, in case there had been failure to pay the amount under the cheque. On the contrary, the accused contends that there was no endorsement and delivery and on the death of the payee of the instrument, the criminal action cannot be initiated.
9. In the decision reported in 1997 COMPANY CASES KERALA 399, the learned Judge of Kerala High Court had held that the executor of the Will cannot be stated to be the holder in due course as there was nothing to show that he had paid the consideration to the payee. On careful perusal of the said decision, it is clear that the complainant had been claiming his right on the basis of a Will and as a holder in due course. The learned Sessions Judge had held that the complainant himself was in possession of the instrument for consideration and as there was no material to show the passing of consideration, the complaint came to be quashed. But, in the case on hand, the complainant has been claiming to be the legal heir of the deceased payee. By statutory provisions of the Negotiable Instruments Act, it is seen that the payee is a person named in the instrument, to whom or in whose favour the money is directed to be paid. In the case on hand, the complainant is none other than the wife of the deceased payee. Having regard to the facts and circumstances of the case and in view of the said statutory provisions, this Court is of the opinion that the person who claims as legal heir of the payee cannot be termed as holder in due course in the strict sense, but in the opinion of this Court, he steps into the shoes of the payee and he will be the payee for all practical purposes. Under these circumstances, the ratio laid down in the said decision cannot be pressed into service to spell out a case in favour of the accused.
10. In another decision of the Division Bench of this Court, reported in 2004 KCCR 2817, the Division Bench held that if the complaint had been filed for an offence under Section 138 of the Negotiable Instruments Act, the death of the complainant is of no legal consequence and the legal heirs of the complainant could continue with the complaint and the complaint does not ipso facto gets terminated or abated on the death of the complainant. Taking cue from the ratio laid down in the said decision, having regard to the facts and circumstances of the case and the settled law in this regard, in the opinion of this Court, it makes no difference whether the complaint had been filed by the person who claims as legal heir of the payee in a proceeding of this nature or the complaint dies during pendency of the complaint.
11. In another decision of this Court, , the learned Judge had held that there is no need for the person to be treated as a holder in due course and if there is an endorsement and delivery, the person could definitely file a complaint under Section 138 of the NI Act, as he would be a holder in due course. The discussion supra, goes to show that this Court has held that, on the death of a payee, the legal heirs automatically step into the shoes of the payee and as such, the ratio laid down in the said decision cannot be pressed into service.
12. Having regard to the factual aspects and the settled principles of law in this regard, in the opinion of this Court, on the death of the payee, his legal heirs steps into the shoes of the payee for all practical purposes and such a person can also file and prosecute the complaint after completing the legal formalities. It is also necessary to mention that it would be incumbent upon the Complainant to prove that the Complainant is the legal representative of the deceased payee, in the event of accused disputing the same. In the case on hand, the payee had died and the wife of the payee, as the legal heir, had presented the cheque in question and on the cheque being dishonoured, legal notice had also been issued and thereafter, the proceedings had been initiated under Section 138 of the NI Act.
13. In view of the facts and circumstances of the case and the law stated above, in the opinion of this Court, the complaint as filed before the learned Magistrate had been in accordance with law. The learned Magistrate was totally justified in taking cognizance of the case and proceeding in the matter. The learned Sessions Judge had not considered the facts in issue in the light of the settled principles of law and as such, in the opinion of this Court, it would be in the ends of justice if the order impugned is set aside and the order passed by the learned Magistrate is restored.
14. For the foregoing reasons, the petition stands allowed. The order of the learned Sessions Judge passed in Crl.R.P.No. 91/2000 on the file of the Principal Sessions Judge, Bagalkot, is hereby set aside and consequently, the complaint stands restored. The learned Magistrate to proceed with the case in accordance with law.