IMPORTANT POINT
When amount shown in cheque is more than what is legally due or enforceable; no offence under Section 138, N.I. Act is made out, unless cheque is presented with endorsement regarding partial discharge.

P.S. Gopinathan, J.—The 1st respondent herein prosecuted the revision petitioner before the Judicial Magistrate of the First Class-II, Kollam in CC No.733 of 2003 alleging offence under Section 138 of the Negotiable Instruments Act. It was contended that the revision petitioner owed a sum of Rs.3,71,734 and in discharge of the said liability a cheque which was marked as Ex. P1 was issued. When Ex. P1 was presented for collection, the same was dishonoured for insufficiency of funds and that despite the demand to discharge the liability, no payment was made.

2. The revision petitioner in response to the process issued entered appearance and pleaded not guilty when the particulars of the offence was read over and explained. Hence he was sent for trial. On the side of the respondent, he was examined as PW1 and Exs.Pl to P6 were marked. When questioned under Section 313 of the Code of Criminal Procedure, he denied the incriminating evidence. On his side two witnesses were examined as DWs. 1 and 2 and Exs. Dl and D2 were marked. The learned Magistrate on appraisal of evidence, arrived at a conclusion of guilty. Consequently the revision petitioner was convicted for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for eight months and a fine of Rs.5,000 with a default sentence of simple imprisonment for two months. The fine amount if realized was ordered to be paid to the first respondent as compensation under Section 357(1) of the Code of Criminal Procedure.

3. Feeling aggrieved by the above conviction and sentence, criminal appeal No.313 of 2006 was preferred before the Sessions Judge, Kollam. The learned Additional Sessions Judge to whom the appeal was made over, by judgment dated 13.2.2007 confirmed the conviction and sentence.

4. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed.

5. Having heard the learned counsel on either side and perusing the judgments of the Courts below, I find that Ex. P1 cheque for Rs. 3,71,734 dated 30.6.2002 drawn on Federal Bank, Thiruvananthapuram was issued by the revision petitioner to the first respondent. At the time when Ex.P1 cheque was issued, there was liability amounting to Rs.3,71,734. Thereafter on 24.7.2002, the revision petitioner paid a sum of Rs.1,00,000. It is admitted by PW1 during the cross-examination. Though Rs.1,00,000 out of the amount covered by Ex.P1 cheque was received on 24.7.2002, the 1st respondent presented the cheque for collection on 10.12.2002 for the entire amount. On that date there was no sufficient funds in the account of the revision petitioner to cover the full amount. Hence, it was returned with Ex. P2 memo for reason “funds insufficient”. There upon the first respondent, on 20.12.2002 caused a notice demanding discharge of Rs. 3,71,734 though Rs.1,00,000 out of the said amount was paid by the revision petitioner. On receipt of Ex.P3, the revision petitioner sent Ex.D2 reply. In Ext.D2 it is specifically mentioned that out of the amount covered by Ex.P1 cheque, Rs.1,00,000 was paid and it was acknowledged by the first respondent. It was further stated that the revision petitioner was ready to settle the dispute within a reasonable time and not to initiate unnecessary litigation. A reading of the complaint filed by the first respondent would show that there is no mention regarding the acknowledgment of Rs.1,00,000 on 24.7.2002. The complaint was also filed as if the entire amount as per Ex.Pl was due and there is refusal to discharge the liability. The admission of PW1 would show that in fact on the date of presentation of Ex.Pl that much amount was not due. On the date of issuance of Ex.P3 notice also such amount was not due. Suppressing all these facts, complaint was filed. There is total lack of bona fides. Since the respondent did not care to make endorsement under Section 56 of the Negotiable Instruments Act, I f