In the present case, admittedly, the cheque was issued in the name of deceased after one month of his death. Prima facie, the applicants, who claim as legal heirs of Mahendrabhai Patel (deceased), were required to honestly inform the Banker of the deceased Mahendrabhai of the fact of his death while they sought to present the cheque in the account of the deceased and to take further steps in respect of account of the deceased with his Banker. None of the applicants were named as payee of the cheque and the learned Additional Sessions Judge rightly observed that there was nothing on record on the basis of which it can be said that the applicants were holder in due course. Under these circumstances, unless the applicants were authorised by Succession Certificate or Letter of Administration or Probate, if any granted by the competent Civil Court in respect of the amount in question payable by the cheque in the name of the deceased, they could not have insisted upon the drawer to pay the amount of dishonoured cheque without lawfully entering into the shoes of the deceased payee. Under these circumstances, the complaint was not maintainable and the order of issuance of process was result of non-application of judicious mind by the learned Magistrate to the essential elements of the offence punishable under Section 138 of the Negotiable Instruments Act. That being so, the impugned judgment and order by Revisional Court is correct, proper and legal and no interference is warranted under Section 482 of the Code of Criminal Procedure.
Equivalent Citation: II(2012)BC431;i 2011 ALL MR (Cri) 3533
IN THE HIGH COURT OF BOMBAY
Crl. Appln. No. 1657 of 2010
Decided On: 25.07.2011