IMPORTANT POINT
The payee or the holder in due course of the cheque can maintain the complaint.

M. Karpagavinayagam, J. - Mr. Prabhakaran, the petitioner herein has filed this revision challenging the judgment in C.A. No. 80 of 1993 on the file of learned Sessions Judge. Kanyakumari District at Nagarcoil, confirming the conviction for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") imposed upon him in C.C. No. 172 of 1991 on the file of Judicial Magistrate No. 1, Kuzhithurai.

2. The case of the prosecution is this:-The petitioner/accused borrowed a sum of Rs. 25,000/- from the complainant on 5-1-1991 and issued a postdated bearer cheque (cash cheque) with the date 5-8- 1991 drawn on Union Bank of India, Marthandam Branch for the said amount. Later, when the cheque was presented for encashment by the complainant on 5-8-1991, it was returned with an endorsement "not arranged for". There upon, on 16-8-1991 the complainant sent a statutory notice to the petitioner demanding the cheque amount. The petitioner sent a reply dated 30-8-1991 denying the issue of the cheque and loan. Hence, the respondent herein filed a private complaint before the trial Court on 24-9-1991.

3. On behalf of the prosecution, the respondent examined himself as P.W. 1 and also examined two other witnesses. Exs. P 1 to P7 were examined on the side of the prosecution. On the side of the accused, the petitioner D.W. 1 and D.W. 2 were examined and Exs. D 1 to D-5 were marked.

4. After trial, the lower Court convicted the petitioner by the judgment dated 14-10-1993 for the offence under Section 138 of the Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/-, in default to undergo R.I. for three months. This was challenged before the appellate Court, which confirmed the judgment of the lower court. Hence, the revision.

5. Mr. Gopinath, the learned senior counsel appearing for the petitioner, would contend that though the prosecution has not established the ingredients of the offence under Section

138 of the Act and there is no material to show that the complainant is the drawee, as the cheque was a cash cheque, the lower court wrongly concluded that the petitioner is guilty of the offence under section 138 of the Act. He would also point out various discrepancies in the evidence of P.Ws. 1 and 2. By reading out some of the portions of defence witnesses, it is submitted that the evidence of P.Ws. 1 and 2 cannot be accepted.

6. In reply to the above submissions, Mr. C.S.S. Pillai, the counsel for the respondent complainant resisted the said argument in support of the impugned judgments.

7. I have gone through the records and carefully considered the submissions made on either side.

8. The main thrust of the argument of the counsel for the petitioner is that the complainant cannot be said to be the drawee, as the cheque happened to be the cash cheque. This submission in my view, does not have any substance.

9. Under Section 138 of the Negotiable Instruments Act, where any cheque drawn by a person on an account maintained by him for payment of any money to another person from out of that account for the discharge of any debt is returned by the bank as not arranged for, such person shall be deemed to have committed the offence. As per the proviso to Section 138, the offence is complete only when the demand made by the payee or the holder in due course of the cheque for the payment of the cheque amount through notice was not met by the drawer of the cheque within the time prescribed. Thus, it is clear that the payee or the holder in due course of the cheque can maintain the complaint.

The meaning of the "holder in due course" as provided in Section 9 is any person who for consideration became the possessor of the cheque if payable to bearer. This also would make it clear that the bearer of the cheque becomes the holder in due course. Sections 118 and 139 of the Act also would reveal that the holder of a cheque is the holder include course. Therefore, the complain ant