V K GEMINI Vs. CHANDRAN

JUDGEMENT

(1.) Can the complainant (i.e., the "payee" or the "holder in due course"), in a prosecution for offence under Section, 138 of the Negotiable Instruments Act (the, Act, for short) be presumed to be the "holder" of the cheque Can the presumption under Section 139 of the Act be drawn in favour of the complainant, invariably in all such complaints treating him as the "holder" of the cheque Can the mere admission of the handwriting and signature in the cheque lead to the presumption under Section 139 of the Act that the cheque is received for the discharge of a debt or liability These are the main question which arise for consideration in this appeal.

(2.) The appellant filed a complaint before Magistrate's Court, alleging offence under Section 138 of the Negotiable instruments Act ('the Act', for short), against first respondent herein. The accused first respondent allegedly borrowed a sum of Rs. 60,000/-from complainant and issued a cheque, Ext. P1 for the discharge of the debt. The cheque, on presentation was dishonoured, due to insufficiency of funds. Notice was issued to accused, other legal formalities were complied with, and a complaint was filed against first respondent. PWs. 1 to 3 were examined and Exts. P1 to P7 were marked, on the side of the complaint/appellant. The accused examined DWs. 1 to 3 and marked Exts. Dl and D2 on his side.

(3.) According to accused he had been mentally sick for the past 8 to 9 years prior to the alleged transaction. Because of the peculiarity of the disease, his mental condition was impaired. In such state of mind, he as in the habit of issuing cheques to various persons, without owing anything to them. He used to assume himself to be a very affluent person during such period. But, people used to return such cheques, understanding the peculiar and abnormal habit of the accused. Ex. P1 is one such cheques issued to complainant which was misused by the complainant to file the complaint. The accused actually did not owe any money to complainant and he did not issue any cheque for the discharge of any debt or other liability, as alleged.