ORDER
C.Y. Somayajulu, J.
1. Proceedings under Section 138 of Negotiable Instruments Act (for short ‘the Act’) initiated by the first respondent against the petitioner alleging the cheque for Rs. 10,000/-drawn in his favour by the petitioner towards part satisfaction of the debt due to him, was dishonoured for want of sufficient funds in the account of the petitioner, and that statutory notice got issued by him intimating the petitioner about the dishonour of the cheque with a demand for payment of the amount covered by the cheque, did not evoke any response, was taken cognizance of by the learned Magistrate. This petition is filed to quash the said proceeding on the ground that since first respondent is neither the payee nor holder in due course of the dishonoured cheque, he is not entitled to prosecute the petitioner for an offence under Section 138 of the Act.
2. The contention of the learned Counsel for the petitioner is that since the cheque is drawn in the name of ‘Rachana Refrigeration’ and since V. Raghunath (1st respondent) is the complainant in this case, and since the allegations in the complaint do not disclose as to how 1st respondent is connected with ‘Rachana Refrigeration’ i.e. the payee of the dishonoured cheque, complaint filed by the 1st respondent who is neither the payee nor the holder in due course of the dishonoured cheque is liable to be quashed. The contention of the learned Counsel for 1st respondent is that since 1st respondent is the proprietor of ‘Rachana Refrigeration’ and since the dishonoured cheque was issued by the petitioner in connection with the business transaction between him and the 1st respondent as proprietor of ‘Rachana Refrigeration’ can file the complaint under Section 138 of the Act.
3. This dishonoured cheque admittedly is drawn in favour of ‘Rachana Refrigeration.’ So the payee of the dishonoured cheque is ‘Rachana Refrigeration’. As rightly contended by the learned Counsel for the petitioner there is no wishper about the 1st respondent carrying on business in the name and style ‘Rachana Refrigeration’ or as to how the petitioner is concerned or connected with ‘Rachana Refrigeration’, the payee of the dishonoured cheque, in the complaint.
4. Section 142 of the Act reads:
“…No Court shall take cognizance of an offence punishable under Section 138 except upon a complaint in writing made by the payee or, as the case be the holder in due course of the cheque”.
Since the payee in this case is ‘Rachana Refrigeration’ and since the complaint is filed by V. Raghunath (1st respondent), even without making a mention as to how he is connected with ‘Rachana Refrigeration’ it cannot be said that 1st respondent is the ‘payee’ or ‘holder in due course’ of the dishonoured cheque.
5. Assuming that the petitioner is carrying on the business in the name and style of ‘Rachana Refrigeration’ he should have filed the complaint in the name of ‘Rachana Refrigeration’ represented by the proprietor. There is also no scope for the 1st respondent seeking an amendment at this stage, after expiry of the period of limitation.
6. Since Penal Statute has to be strictly construed, and since 1st respondent, as per the allegations in the complaint, is not and cannot be said to be the payee or holder in due course of the dishonoured cheque, complaint filed by 1st respondent is liable to be and hence is quashed.
7. Petition accordingly is allowed.
