IMPORTANT POINT
For the purposes of Section 138 Negotiable Instruments Act it is not necessary that debt for which cheque is executed should be the liability of drawer himself towards payee.

A. Gopal Reddy, J.—This appeal by the complainant is directed against the Judgment of the I Additional District and Sessions Judge, Kurnool in Criminal Appeal No.10 of 2000 dated 26.4.2000 wherein the appeal filed by 1st respondent Accused No.2 was allowed setting aside the conviction and sentence recorded by the Judicial Magistrate of I Class, Kurnool in C.C. No.77 of 1999 dated 30.12.1999 against him for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the Act’).

2. The appellant filed a complaint against the 1st respondent accused No.2 and his father (A-1) for the offence punishable under Section 138 of the Act alleging that he was the owner of the Ambassador Car bearing No. AAQ 1725 and he sold it to A-1 for Rs.55,000 out of which A-1 paid an amount of Rs.40,000 and for the balance amount of Rs.15,000 A-2 who is no other than the son of A-1 issued a cheque on the account maintained by him. When the cheque was deposited for collection, it was returned with an endorsement ‘insufficient funds’. Later, he met both the accused and informed them about the dishonour of the cheque and, at their request, he presented the same fifteen days later for collection. But, again the cheque was returned again with endorsement “insufficient funds.” Thereafter, he got issued a legal notice dated 8.2.1999 calling upon them to pay the amount, but the accused managed to return the same as unserved. Therefore, he filed the complaint against the accused.

3. In Order to prove the complaint allegations, the complainant got himself examined as P.W.1 and another witness P.W.2 was examined as an independent witness and marked Exs.P-1 to P-6 as documentary evidence.

4. The lower Court after analyzing the oral and documentary evidence, found A-1 not guilty of the offence and acquitted him of the offence, but A-2 was found guilty for the offence punishable under Section 138 of the Act and accordingly he was convicted and sentenced to suffer simple imprisonment for a period of three months and also to pay a fine of Rs.16,000 and in default of such payment to suffer simple imprisonment for one month.

5. Questioning the conviction and sentence recorded by the lower Court, Accused No.2 preferred appeal before the I Additional District and Sessions Judge who by impugned Judgment allowed the appeal holding that since there is no relationship of ‘debtor’ and ‘creditor’ between the ‘complainant’ and ‘accused No.2’, though he is the son of A-1, the same will not confer a right on the complainant to enforce the liability of A-1 against A-2. It was, therefore, concluded that there was no relationship of ‘debtor’ and ‘creditor’ between the ‘complainant’ and ‘appellant-Accused No.2.’

6. It was further held that as per the complaint allegations, the cheque was dishonoured and returned on 1.1.1999 for ‘insufficient funds’. Demand notice was not given to Accused No.2 within fifteen days thereafter. Instead of giving a demand notice, the complainant again presented the cheque for collection for second time on 29.1.1999, which was again dishonoured. Since the complainant has lost fifteen days time for issuing a demand notice on the earlier presentation of the cheque and return of the same, it cannot be accepted that the drawer of the cheque requested him for representation of the cheque again and as such the complaint filed by the complainant is time barred and accordingly allowed the appeal.

7. The grounds on which the lower appellate Court set aside the conviction and sentence imposed on 1st respondent Accused No.2 are not sustainable. Under Section 118 of the Act, a presumption can be drawn that the negotiable instrument is for a consideration until the contrary is proved. The proviso to Section 118 envisages that where the instrument bas been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an