The main legal point established in the judgment is that the holder of a cheque is entitled to receive payment against the cheque issued in his name, and there is a presumption of debt or liability unless the contrary is proved by the accused.

This revision is directed against the judgment dated 21.08.2015 passed by the learned Sessions Judge, Lohardaga in Criminal Appeal No. 81 of 2014, whereby he dismissed the appeal and confirmed the judgment of conviction dated 28.11.2014 passed by learned Sub Divisional Judicial Magistrate, Lohardaga, in Complaint Case No. 240 of 2014 corresponding to T.R. No. 514 of 2014. However, learned appellate court modified the order of sentence to the extent that the accused should undergo S.I. for 15 days and pay compensation of Rs. 10 lacs to the complainant for the offence under Section 138 of the Negotiable Instruments Act.

2. It is submitted by Sri Rajesh Kumar, learned counsel for the petitioner that in the instant case, the notice has not been served upon the petitioner by the holder of the cheques, therefore, there is non-compliance of Section 138 of the Negotiable Instruments Act. It is further submitted that the petitioner owes no debt or liability against the complainant. Thus, no case made out under Section 138 of the Negotiable Instruments Act.

3. On the other hand, Sri Ram Prakash Singh, learned counsel for the State and Sri Satish Prasad, learned counsel appearing for the complainant/opposite party no. 2 submits that infact the cheques were issued in the name of complainant – Bishwanath Prajapati. Thus, as per Section 8 of the Negotiable Instruments Act – Bishwanath Prajapati is the holder of the cheque. It is submitted that it is an admitted position that the notice served upon the petitioner by Bishwanath Prajapati. Thus, there is no legal defect in the notice. It is further submitted by learned counsels for the opposite parties that under Section 139 of the Negotiable Instruments Act, there is a presumption of debt or liability unless the contrary is proved by the accused. It is submitted that in the instant case, though petitioner examined himself as a defence witness, but he has not stated a single word in his deposition that he does not owe any debt or liability towards the opposite party no. 2.

4. Having heard the submissions, I have gone through the record of the case and certified copy of depositions and other relevant papers produced by learned counsel for the petitioner. Admittedly two cheques in question were issued in favour of Bishwanath Prajapati (Complainant).

Section 8 of the Negotiable Instruments Act defines “holder”, which runs as follows:-

“8. “Holder”. -The “holder” of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.

Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction.”

5. Thus, from plain reading of aforesaid definition, it is clear that holder of cheque means the person who is in possession of the cheque which is in his own name and thus entitled to receive payment against the same. As noticed above, the two cheques issued in the name of complainant – Bishwanath Prajapati. Under the said circumstance, in my view, Bishwanath Prajapati is entitled to receive payment against the said cheques.

6. As per Section 138 of the Negotiable Instruments Act, notice is required to be given by payee or holder of the cheque. Admittedly, in this case Bishwanath Prajapati is the payee and/or holder of the cheques. Thus, I find no illegality in the notice, which was served upon the petitioner in this case. Thus, the first contention raised by Sri Rajesh Kumar is hereby rejected.

7. Now coming to the next question raised by Sri Rajesh Kumar, learned counsel for the petitioner, that the cheques in question have not been issued for discharge of any legally enforceable debt or other liability, it is worth mentioning that under Section 139 of the Negotiable Instruments Act, there is a presumption that holder of a cheque received the cheque, of the nature referred to in Section 138, for discharge, in whole or i