IMPORTANT POINT
Dishonour of cheque – If cheque is drawn not on account maintained by accused but by some other person, same will not attract provisions of Section 138 of NI Act.

JUDGMENT

Rakesh Kainthla, J.—The present revision is directed against the judgment dated 01.11.2018 passed by the learned Additional Sessions Judge-I, Kangra at Dharamshala, vide which the appeal filed by the revisionist (accused before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were referred before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘NI Act’). It was asserted that the complainant and the accused had good relations with each other. The accused approached the complainant on 04.01.2007 and demanded Rs.1,00,000/-for some business with an assurance to return the same after a few months. The accused returned the amount of Rs.50,000/ - on 04.01.2007. He again borrowed a sum of Rs.1,00,000/- on 03.05.2007 and assured to return the same together with the earlier amount. The accused returned Rs.30,000/- on 02.12.2007. He again borrowed Rs.1,00,000/- and returned Rs.3,000/-. Thus, he is liable to pay Rs.2,17,000/ - to the complainant. The complainant asked the accused to return the amount of Rs.2,17,000/-. The accused issued a cheque on 03.03.2008 for a sum of Rs.2,17,000/- drawn on his Bank-State Bank of Patiala, Nagrota Bagwan. The complainant presented the cheque before his Bank, namely, Himachal Gramin Bank, Nurpur on 18.03.2008 from where it was sent to the bank of the accused; however, the cheque was returned with an endorsement of ‘funds insufficient’. The complainant issued a notice to the accused asking him to pay the amount but the accused failed to do so. Hence, the complainant filed a complaint against the accused.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared before the Court, the learned Trial Court put the notice of accusation for the commission of an offence punishable under Section 138 of the NI Act. The accused pleaded not guilty and claimed to be tried.

4. The complainant examined himself (CW1), Jagdish (CW2) and Mansa Ram (CW3).

5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the case of the complainant. He stated that the cheque was issued as security for purchasing a vehicle. The amount was paid to the complainant. The complainant stopped the operation of the account. He examined Surjeet Singh (DW1) and himself (DW2).

6. Learned Trial Court held that there is a presumption that the cheque was issued in discharge of legal liability. Even if the cheque was issued as a security, the same will fall within the purview of Section 138 of the NI Act. The cheque was dishonoured. The accused failed to pay the amount despite the receipt of a valid notice of demand, hence, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.3,00,000/- and in default of payment of fine to further undergo imprisonment for 15 days.

7. Being aggrieved from the judgment and sentence passed by the learned Trial Court, the accused filed an appeal which was decided by learned Additional Sessions Judge-I, Kangra at Dharamshala. Learned First Appellate Court held that the issuance of the cheque was not disputed by the accused. He claimed that the cheque was issued as a security. No agreement was produced to substantiate this plea. The accused failed to rebut the presumption attached to the cheque. The cheque was dishonoured and the accused failed to pay the amount within 15 days from the date of the notice of demand. Hence, the appeal was dismissed.

8. Being aggrieved from the judgment passed by the learned Courts below, the accused filed the present revision asserting that the learned Courts below erred in convi