Ajay vs Smt. Radhabai

M.C. Garg, J.—Nobody appears for the respondents despite service and filing of Vakalatnama. This is an interesting matter in which two cheques were issued in the name of one Balkrishna Rathi, who is no more. After his death, his wife Smt. Radhabai has filed a complaint u/s 138 of Negotiable Instruments Act against the present petitioner on the allegations that present petitioner was the drawer of cheques, which were dishonoured on presentation, but despite notice, the petitioner is not making payment towards the dishonoured cheques. In the complaint itself it has been mentioned by complainant Smt. Radhabai that cheques were drawn in the name of Balkrishna Rathi. His son has prosecuted the complaint, but who is also no more. Other Legal Representatives have been arrayed in the complaint and the case is at the stage of evidence, however, no evidence has been recorded.

Grievance of the petitioner is that the complaint so filed should not have been entertained and in fact no cognizance should have been taken, in as much as once the person in whose favour the cheques were issued is no more. In similar case efforts were made to launch prosecution on the basis of dishonoured cheques issued in favour of dead party and a complaint was filed u/s 138 of the Negotiable Instruments Act. This Court in the case of Kishore Goyal Vs. Hanif Patel, has made the following observations:--

In the present case, cheque is in favour of deceased/Kudrat Patel. In the complaint it is nowhere stated that when Kudrat Patel has died. Similarly, except in title nowhere it has been stated by the respondent that how the respondent is entitled for the cheque amount. It is also not mentioned in the complaint that who are the legal representatives of deceased/Kudrat Patel and prior to his death any Will was executed by the deceased or not ? Since the complaint has been filed by a person in whose favour no cheque was issued by the petitioner, therefore, in the opinion of this Court, no cognizance could have been taken against the petitioner for an offence alleged to have been committed by the petitioner keeping in view sub-section (a) of Section 142 of NI Act. In view of this, the petition filed by the petitioner is allowed and impugned order passed by learned Trial Court and also the complaint filed by the respondents quashed.

Facts of this case almost similar. Accordingly, the complaint filed by respondent against the petitioner based upon two cheques, which were issued by the petitioner in favour of Balkrishna Rathi, could not have been presented during his lifetime, is hereby quashed u/s 482 of Cr.PC.

C.C. as per rules.