IMPORTANT POINT
In absence of any pleadings towards execution of cheque and evidence in support of such transaction, complainant is not entitled to get presumption as contemplated under Section 139 of N.I. Act.

V.K. Mohanan, J.—The accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the N.I.Act’) has come up in revision challenging the judgment of the trial court as well as the lower appellate court by which she is found guilty under Section 138 of the N.I.Act.

2. The case of the complainant is that out of business deal between himself and the accused, who is a lady, the accused issued cheque for Rs. 75,000/- drawn in favour of the complainant, which when presented for encashment, dishonoured on the ground of insufficiency of fund in the account maintained by the accused and consequently, according to the complainant, though a statutory notice was caused to be issued to the accused, she refused to accept the notice and no amount was repaid and therefore, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act.

3. With the above allegation, the complaint was originally lodged before the Judicial First Class Magistrate Court, Irinjalakuda wherein cognizance was taken and thereafter, the complaint was transferred to the present trial court viz., the court of Additional Munsiff and Judicial First Class Magistrate, Irinjalakuda. During the trial of the case, the complainant himself was examined as PW1 and Exts.P1 to P7 were marked. No evidence whatsoever was adduced from the side of the accused. The trial court, as per its impugned judgment, found that though there is some incongruity between the averments in the proof affidavit and the matters brought out in the cross-examination, that are not sufficient to corrode the case of the complainant and finally found that the accused has failed to rebut the presumption under Section 139 of the N.I.Act. Thus, it was further held that Ext.P1 cheque is one drawn by the accused for the discharge of the liability as alleged and thus, she was found guilty for the offence under Section 138 of N.I.Act. Consequently, she was directed to pay to the complainant a sum of Rs. 75,000/, the cheque amount, under Section 357(3) of Cr.P.C., in default of payment of which she was directed to undergo simple imprisonment for a period of one month.

4. Challenging the above finding, the order of conviction and sentence, though the accused preferred an appeal, by judgment dated 16.11.2010 in Crl.A.No.151/2007, the court of Sessions, Thrissur dismissed the appeal and the appellant/accused was convicted and sentenced to undergo imprisonment till rising of the court and she was also directed to pay compensation of Rs. 75,000/- to the complainant under Section 357(3) of the Cr.P.C. and in default, she was directed to undergo simple imprisonment for a period of one month. It is the above finding, conviction and sentence that are challenged in this petition.

5. Heard Sri.Babu Cherukara, the learned counsel appearing for the petitioner and Advocate Sri.V.M.Krishna Kumar, the counsel appearing for the respondent.

6. The counsel appearing for the revision petitioner vehemently submitted that the complainant has miserably failed to establish by adducing evidence about the transaction, that allegedly taken place between the complainant and the accused. But, the court below, ignoring the above lacuna in the case of the complainant, proceeded to convict the accused. It is pointed out by the learned counsel for the petitioner that the complainant has miserably failed to plead and prove the transaction by which the liability is created upon the accused to issue the cheque in question. After taking me through the evidence of the complainant, the learned counsel submitted that the complainant has miserably failed to prove the execution of the cheque and also failed to substantiate the transaction creating liability upon the accused to issue a cheque, thus in toto, the submission of the learned counsel for the revision petitioner is that the complainant has miserably failed to establish a legally enforceable debt due