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.