Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”), concurrently by the two courts below. The trial magistrate, on conviction of the accused, has sentenced her to undergo simple imprisonment for six months and to pay fine of Rs.70,000/- with default term of simple imprisonment for two months more. Fine amount, if realised, was directed to be paid to the complainant as compensation. In appeal, the Sessions Judge confirmed the conviction and sentence without any modification. Feeling aggrieved, the accused has preferred this revision.

2. The 1st respondent is the complainant. He filed a complaint against the revision petitioner/accused alleging that a cheque issued by her towards discharge of a liability to him was dishonoured on presentation. When intimation of dishonour was given over phone he was directed to meet the accused to collect the sum. He went over to her house and, on demand, showed the dishonoured cheque. She snatched and got hold of a portion of the cheque and destroyed it. Later a notice intimating dishonour with demand of the sum covered by the cheque was issued, in which the incident referred to partial destruction of that instrument was also narrated. A reply denying the transaction and issuing of cheque to him, and also the aforesaid incident alleged, was given by the accused. Producing the portion of the cheque, which remained with the complainant, with such portion containing the signature of the drawer, he filed a complaint to prosecute the accused for the offence under Section 138 of the Act. Both the courts below, on the materials tendered, negativing the challenges raised by the accused denying the transaction with the complainant and issuing of any cheque to him, found her guilty, and convicted and sentenced her as aforesaid. Impeaching the propriety, legality and, in fact, the very sustainability of the prosecution of the accused for the offence under Section 138 of the Act, the revision has been filed assailing her conviction.

3. I heard the counsel on both sides.

4. The learned counsel for the accused contended that prosecution of a drawer of a cheque, on the dishonour of such instrument, for the offence under Section 138 of the Act would be permissible, and in fact, entertainable only where it is established that an ‘instrument’ satisfying the definition of a ’cheque’ under the Act, is produced before the court. What has been produced in the present case as Ext.P1 is not a ‘cheque’, but only a portion of what is claimed to be a ‘cheque’, according to the counsel. That portion of the ‘cheque’ contains the signature of the accused is not sufficient to prosecute her for the offence under Section 138 of the Act, when that mutilated cheque does not even contain the number of that instrument or the particulars of the drawee bank, is the submission of the counsel. The defence of the accused that a torn portion of a cheque left behind with other waste papers when she vacated a rented building under her occupation, the management of which was then with the complainant, had been fraudulently made use of the complainant was not appreciated properly by both the courts below, is the submission of her counsel. Even if that explanation offered by her as to how the complainant got hold of a portion of the cheque containing her signature is not acceptable, according to the counsel, that would not enable the complainant in any way to sustain the prosecution against her for an offence under Section 138 of the Act. Where execution of the instrument is denied, it is submitted, there should be concrete and convincing evidence producing the cheque that it has been duly executed by the accused, who is alleged to be the drawer of the instrument, and, further, that instrument has been issued towards discharge of a legally enforceable debt or liability. Reliance is placed by the counsel in Jose v. Joy {2008 (3) KOT 512}