It is my humble opinion that accused are being taken for ride under this S.139. Despite some good judgement by various High Courts, unfortunately the lower courts along with the defense lawyers are not appreciating the true interpretation of S.139. I will try to clarify the position as follows..
-- S.8 defines Holder and S.58 talks of possessor, so basically a possesor of a cheque need not be the holder of the cheque. The Holder is the possessor with consideration due.
-- S.139 gives presumption to the holder not to the possessor.
-- S.139 gives presumpion with respect to type of liability, not with respect to amount of liability.
-- S.138 talks of drawn (or execution).
-- Mere signature on the cheque is not the proof of drawing a document.
--S.46 (Delivery) talks of completion of drawn on delivery.
-- S.20 is not applicable to cheques, so a blank cheque is not a cheque at all when issued.
So in nutshell, complainant can be made to answer despite S.139:
1. The date on which he received the cheque ?
2. Proof of execution of cheque ?
3. Proof with respect to liability amount.
If it can be proved that cheque (non PDC) was delivered 6 months prior to date of presentation, no conviction, If cheque execution was denied and complainant fails to prove, no conviction, if the liability amount is questioned with some evidence (court may not sill accept blind denial on this) that it is questionable, then also no conviction.
Mostly complainant gives some cock & bull story about liability like friendly loan etc and courts still convict stating that accused could not rebut the presumption.
Request more views so that this another menace like 498A act, can be brought to the notice.
