( 1 ) THIS Criminal Petition is filed to quash the proceedings against the petitioner for the offence under Section 138 of the Negotiable instruments Act (hereinafter referred as the act ) in C. C. No. 39 of 2001, on the file of the vii Metropolitan Magistrate at visakhapatnam.

( 2 ) THE 1st respondent filed a criminal complaint under Section 138 of the Act, against the petitioner herein stating that the complainant had joined as a member in the chit fund of he accused-petitioner herein and after the completion of the chit, the accused gave two cheques towards the final settlement of the chit amount in favour of the complainant, drawn on Canana Bank, visakhapatnam, to be paid in favour of the complainant by way of Demand Draft. The said two cheques were presented on 05-12-2000 before the bank, but the bank dishonoured the same on 6-12-2000, due to insufficiency of funds. When the complainant informed the same to the accused about the dishonour of the two cheques, the accused requested the complainant to present them once again and accordingly, the complainant re-presented the cheques on 22-12-2000 and again the cheques got dishonoured by the bank for want of funds. The complainant gave a notice of 15 days through his lawyer calling upon the accused to pay the dishonoured cheques amount within 15 days, which was received by the accused on 12-01-2001, but the accused failed to pay the same and accordingly, immediately after expiry of the 15 days period of the said notice, the complainant filed a complaint within 30 days in accordance with law and the said complaint was taken on file for investigation and the learned Judge, took cognizance of the offence under Section 138 of the Act.

( 3 ) THE learned Counsel appearing for the petitioner herein submits that under section 142 (a) of the Act, no cognizance can be taken on the complaint of the complainant herein as he is not the payee and the payee is the bank alone. The petitioner herein is not the holder of the cheques and therefore the cognizance taken of the alleged offence in this case is in violation to the express provision of law as contemplated under section 142 (1) of the Act and the quash petition is maintainable.

( 4 ) A perusal of the copies of the cheques makes it clear that the accused gave the cheques in favour of the bank for issuance of demand Drafts in favour of 1st respondent herein i. e. , Chinnam Krishna Murthy, who is said to have been subscribed a chit and the amounts are payable to him. The cheques issued to the complainant or the cheques issued in favour of the bank for giving demand Drafts in favour of Chinnam krishna Murthy, i. e. , 1st respondent herein-complainant, are for payment of money to the complainant alone. The Demand Drafts given to Chinnam Krishna Murthy or the money intended to be paid to Chinnam krishna Murthy, is one and the same and it is not the case of the petitioner herein that he is not due any money payable to the complainant herein. Under Section 239 of the Act, it shall be presumed, unless contrary is proved, that the holder of the cheque, received the cheque referred to under section 138 for the discharge of his debt or liability. Under Section 138 (Explanation), the moment the cheque is issued, it shall be presumed that it is a legally enforceable debt and liability, unless the contrary is proved.

( 5 ) THE accused had given the cheques to the complainant in his name to get the demand Draft from his banker. As the funds are insufficient for issuance of the Demand drafts in favour of the payee, the Bank has dishonoured the cheques and therefore, I cannot agree with the contention of the learned Counsel for the petitioner herein that the complainant is not the payee and the court cannot take congnizance of the offence punishable under Section 138 of the Act against him.

( 6 ) FOR the aforesaid reasons, the Criminal petition is dismissed.