P GANAPATHY Vs. A MARIMUTHU PILLAY

JUDGEMENT

(1.) This Revision is directed against the order of the Judicial Magistrate No. II, Nagercoil dated 19-1-99 dismissing the application filed by the petitioner/accused praying for discharge.

(2.) Mr. N. Rajan, the learned counsel for the petitioner, on the strength of the decisions in James Khan v. Thomas Cook India Ltd., (1995) 1 Mad LW (Crl) 277; K. Kumar v. M/s. Bapsons Foot Wear, (1993) Mad (Cri) 600 and Uplanche Mallikarjun v. Rat Kanti Vimala, 1997 Cri LJ 4237 (Andh Pra) would contend that in the case filed against the petitioner by the respondent/complainant for the offence under Section 138 ofNegotiable Instruments Act, there is no material to show that there exists a legal debt of liability and for the discharge of the same, the cheque was issued and that therefore, the petitioner ought to have been discharged by the trial Court.

(3.) I do not agree with the above contention on two grounds. Firstly, according to the complaint, the petitioner borrowed a loan of Rs. 1,25,000/- on 28-12-97 and towards discharge of the said loan, the cheque dated 28-3-98 was issued and on 3-4-98, the cheque was dishonoured. Therefore at this stage, it cannot be stated that there is no material to show the existence of a legal debt or liability, especially in the light of Section 139 of the Negotiable Instruments Act, which creates presumption with reference to the discharge of liability.