S. Mohan Singh vs Madan Lal

Bilal Nazki, J.—The respondent has filed a complaint against the petitioner in the Court of Sub Judge Judicial Magistrate Ist Class, Jammu

u/s 138 of the Negotiable Instruments Act and the learned Magistrate had issued the process.

On Ist of June 1993 When the parties appeared before the Magistrate a plea was taken by the accused that the complaint and the statements

recorded by the Magistrate u/s 242, Cr. P. C. do not disclose that the accused had issued a cheque in discharge of debt which was prerequisite

u/s 138 of the Negotiable Instruments Act. The Magistrate adjourned the case for further arguments.

This petition has been filed u/s 561-A, Cr. P.C. seeking quashment of the proceedings before the learned Magistrate.

I have heard the learned counsel for the parties. Mr. Johal appearing for the petitioner has drawn my attention to Section 138 of the Negotiable

Instruments Act. He submits that the bare reading of the section would show that the basic ingredient of this section that payment of money by one

person to another person must be on account of the discharge of any debt or other liability. Since the complaint or the statement recorded by the

Magistrate u/s 242, Cr. P. C. has not disclosed that the petitioner had to pay any amount to the respondent on account of discharge of any debt or

liability, the complaint was not maintainable. He submits unless a case is put up by the complainant that the cheque issued by the accused which

was dishonoured had been in fact issued for discharging of a debt or liability, the Court cannot take cognizance of an offence u/s 138 of the Act

even if in fact a cheque was issued and dishonoured by the Bank.

Perhaps Mr. Johal would be right but for Section 139 of the Act which lays down :-

It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for

the discharge, in whole or in part, of any debt or other liability.

Section 139 creates a statutory presumption that a cheque, received in the nature referred to u/s 138 of the Act, is always issued in dicharge of

debt or other liability. Therefore, it is not necessary for a complainant to specifically plead that the cheque which was issued to him and

dishonoured by the Bank was in fact issued in the discharge of a debt or a liability. However, it is for the accused to show that the cheque was not

issued in discharge of any debt or other liability. By reading Sections 138 and 139 of the Act together, it becomes abundantly clear that it is .or the

accused to show that the cheque issued by him and dishonoured by the bank was not in the discharge of any debt or liability.

In view of this clear and unambiguous legal proposition, this petition u/s 561-A, Cr. P. C., deserves to be dismissed and is accordingly

dismissed. However, the petitioner shall be free to take any defence including the defence that the cheque issued by him was not in the discharge of

any debt or liability before the trial Court. The record of the case be sent back.