Is the presumption under Section 139 available to a payee? Is such presumption available only to a holder? Does a holder under Section 139 include a payee? These interesting questions are raised in this revision petition which is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.

2. There are two cheques involved for the amounts of Rs.2,50,000/- and Rs.1,60,000/- both dated 15.6.1999. The petitioner now faces a sentence of S.I. for a period of one month. There is also a direction to pay an amount of Rs. 3,00,000/- as compensation. No default sentence is seen imposed.

3. The signatures in the cheques are admitted. The notice of demand, Ext.P7, succeeded in evoking Ext.P8 reply, in which the liability for payment was disputed. The complainant examined himself as PW1 and proved Exts.P1 to P10. The accused did not adduce any defence evidence - oral or documentary. In Ext.P8 reply notice and in the course of the trial, the accused took up a fairly definite and specific stand. Transaction between the parties was admitted. Handing over of both cheques after they were duly filled up was also admitted. But the accused took up a contention that the real transaction was for an amount of Rs. 2 lakhs only. He pleaded that though the transaction was for Rs.2 lakhs he was constrained to hand over Ext.P1 cheque for Rs.2.5 lakhs. According to him, subsequently he had paid interest every month at the rate of Rs.6,000/- p.m. Admittedly such payment was not continued and there was default in payment of interest. It is thereupon that the second cheque, Ext.P2, for an amount of Rs. 1.6 lakhs was allegedly issued by the petitioner to the complainant. In short, the petitioner contended that the initial transaction was not for Rs. 2.5 lakhs. He further contended that the cheque for Rs.1.6 lakhs though admittedly issued, the complainant was not entitled to receive such an excessive amount by way of interest.

4. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all elements of the offence punishable under Section 138 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments.

5. When this revision petition came up for hearing, the learned counsel for the petitioner has advanced various contentions, some not even raised before the court below. The counsel advances three specific contentions. They are:

(1) The liability, to discharge which the cheques are allegedly issued, is barred by limitation and therefore the cheques do not come within the sweep of Section 138 of the N.I. Act.

(2) Simultaneous continuous presumptions under Sections 118 and 139 cannot be drawn in respect of a promissory note and a subsequent cheque issued for the alleged discharge of the liability under the promissory note.

(3) The presumption under Section 139 of the N.I. Act is not available at all to a payee and only a holder is entitled for the advantage of such presumption.

6. Point No.1: The question as to whether Section 138 of the N.I.Act is at all applicable to a cheque issued for the discharge of a time barred debt, according to me, cannot any more be canvassed before this Court in view of the authentic pronouncement of the Division Bench in Ramakrishnan v. Parthasaradhy (2003 (2) KLT 613). The counsel doubts the correctness of the said decision and contends that in that decision the validity under Section 18 of the Limitation Act of the acknowledgment after the elapse of the period of limitation has not been considered properly. The counsel contends that there can be no valid acknowledgment of liability under Section 18 when the period of limitation has already expired. The counsel therefore prays that the matter may be referred to a Division Bench, where the petitioner will be in a position to request the Division Bench to make a reference to a Full Bench.

7. The same argument has been consid