Can the heir of a deceased payee of a dishonoured cheque file a criminal complaint?

 



 The Bombay High Court does not think so.


The Aurangabad bench of the high court earlier
this week quashed the process issued by a
metropolitan magistrate’s court in Ahmednagar in August 2008
against one Vishnupat Khaire.

On September 28, 2007, Khaire had issued a cheque of
Rs 3 lakh in favour of one Balbir Madhan.

A few days earlier, on September 5, Madhan died in an accident.
Kailash said when he deposited the cheque on

February 5, 2008, it was dishonoured.


The cheque bounced for insufficient funds.
Kailash then lodged a complaint after Khaire
failed to pay the amount despite a legal notice being sent.


Khaire approached the HC and argued, through is
advocate that no court could take cognisance of
any offence punishable under Section 138 of the  
Negotiable Instruments act, except if the payee
of the cheque or its holder makes a written complaint.

Khaire argued that Kailash was neither.
However, Kailash’s advocate argued that after
Balbir’s death, Kailash had ‘stepped into his father’s
shoes as payee’ and was entitled to file a complaint.

The court observed that Kailash is not the payee
of the cheque nor was the financial instrument
endorsed in his name by Balbir.

The court said Kailash could have filed a civil
suit on the basis of the dishonoured cheque for
recovery of amount.

“By the demise of payee itself, it cannot
be said that any of the heirs get right to file
a complaint as if he automatically enters into
the shoes of the deceased payee,” observed
Justice P. R. Borkar.

The court said only someone authorised
by a valid legal document granted by the
court could call upon the drawer of a cheque
to pay the amount of dishonoured cheque.

“He will then be entitled to file complaint as
he would be really entering into the shoes
of the deceased payee,” Justice Borkar said
while quashing the magistrate’s order.