The complainant must be the holder in due course for the provisions of Section 138 of the Negotiable Instruments Act regarding dishonour of cheques to apply.

P.G. Agarwal, J.

1. Heard Mr. J.M. Choudhury, learned Sr. Counsel, assisted by Mr. D. Talukdar, for the petitioner and Mr. K. Agarwal, learned counsel appearing for the respondent-complainant.

2. The complainant, Shri Subrata Patangia, filed a written complaint stating, inter alia, that the petitioner, Dr. Jiten Barkakopty, who is a Medical Practitioner of Tezpur Town, had issued a cheque, bearing No. 165072 dt. 4-1-2000, for Rs. 40,000/-. The cheque was drawn in favour of the State Bank of India, Tezpur Bazar (Evening Branch) and it was a self-cheque and was handed-over to the complainant for withdrawal. The complainant deposited the said cheque in his bank account No. 50/19694 but the said cheque was returned unpaid. On receipt of the rejection memo, the complainant served a notice through his advocate on 16-12-2000 but in spite of the receipt of the statutory notice, the drawer of the cheque, Dr. Jiten Barkakoty, petitioner in this revision, did not arrange to make the payment. The petitioner, therefore, filed the complaint, which was registered as C. R. 14/2001. The petitioner-accused was tried by the Additional Chief Judicial Magistrate, Sonitpur, Tezpur and the learned trial Court vide the judgment dated 30-7-2002 convicted the accused petitioner under Section 138 of the Negotiable Instruments Act, for short the Act, and sentenced him with a fine of Rs. 80,000/-, in default to, imprisonment for six months.

3. Feeling aggrieved, the petitioner preferred Criminal Appeal No. 2.9 (S-3)/2002 and vide the impugned judgment, the learned Sessions Judge, Sonitpur, Tezpur, dismissed the appeal, affirming the order of conviction and sentence passed by the trial Court. Hence, the present revision.

4. Shri Choudhury, learned Sr. Advocate, had challenged the order of conviction and sentence on the sole ground that the complainant was not the holder in due course in respect of the cheque No. 165072 for Rs. 40,000/- and, as such, the petitioner cannot be held guilty under Section 138 of the Act. In the present case, there is no dispute at the Bar that the above cheque was a self-drawn cheque. The cheque was produced before the Court and it is available in the record and marked as Ext. I and we have perused the same and find that this is a selfcheque under the signature of the petitioner-accused. The signatures in the body of the said cheque are not disputed by the petitioner.

Section 9 of the Act reads as follows :

"9. 'Holder in due course'.- 'Holder in due course' means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if (payable to order,) before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title."

5. Learned counsel for the respondent complainant was fair enough to submit that Ext. 1, cheque, was not payable to bearer or to the complainant. It was a self-drawn cheque and there is also no endorsement anywhere in the body of the cheque for payment of the amount in favour of the complainant. Thus, we find that the provision of Sections 13 and 14 of the Act as regards the bearer cheque and even the provision of Sections 15 and 16, as regards endorsement, are not at all applicable to the present case as admittedly it was not a bearer cheque in favour of the complainant nor Ext. 1 contained any endorsement under Section 15 or 16 of the Act.

6. Learned counsel for the respondent has submitted as regards the presumption available under Section 118 of the Act. Presumption under the above section is in respect of consideration whether the complainant is found to be holder in due course and as such in order to give the benefit of provision of Section 118 of the Act, the complainant is required to establish that he was a holder in due course. We have perused the impugned judgment passed by the appellate Court which has r