This criminal revision petition arises out of the judgment in Crl. Appeal No.83/96 of the Ist Addl. Sessions Judge, Thiruvananthapuram for offence under Section 138 of the Negotiable Instruments Act, 1881. The revision petitioner was accused in C.C.114/95 of the Judicial First Class Magistrate Court-V, Thiruvananthapuram for offence under Section 138 of the N.I. Act, where he was convicted and sentenced thereunder.

2. The case of the first respondent/complainant in the trial court was that on 12.08.90, the revision petitioner borrowed a sum of `80,000/- from the first respondent with an undertaking to repay the amount as and when required, and in discharge of the debt he issued a cheque drawn on State Bank of Travancore, Nellimoodu branch. When the cheque was presented for encashment, it was dishonoured for the reason, "cheque reported lost". Thereafter, first respondent made a demand for the payment of the said amount by giving a notice in writing to the drawer of the cheque. There was no response from him. In the circumstance, he filed the above complaint in the Judicial First Class Magistrate Court-V, Thiruvananthapuram.

3. To prove the allegation, the first respondent examined PW1 and PW2 and admitted Ext.P1 to P11 in evidence. The incriminating circumstances brought out in evidence were denied by the revision petitioner while questioning him. He did not adduce any defence evidence. The trial court after sifting and weighing the evidence on record, convicted the accused. Against that, he preferred Crl. Appeal No.83/96, in which the first respondent produced Ext.D1 to D4 as his defence evidence. The appellate court after considering the evidence, confirmed the conviction passed by the trial court and modified the sentence.

4. The learned counsel appearing for the revision petitioner contended that Ext.P1 was dishonored on the ground, "cheque reported lost". When the said cheque is reported as lost and returned by the bank on that ground no offence will attract under Section 138 of the N.I. Act.

5. The learned counsel appearing for the first respondent contended that as per Ext.P10, copy of the ledger shows that there was insufficient fund and the offence under Section 138 will automatically be attracted.

6. According to Section 138 of the Negotiable Instruments Act, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from/out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence under Section 138 of the Negotiable Instruments Act. The cheque has to be presented within the statutory period in which it is drawn or within the period of its validity. Secondly, the payee or holder in due course of the cheque makes a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within the statutory period on the date of receipt of information from the bank regarding the return of the cheque as unpaid. Therefore, if the cheque is dishonoured for the reason: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

7. The position is different when the cheque is returned by the bank on the ground that it was reported 'lost' by the drawer. This question was considered by the Apex Court in Raj Kumar Khurana v. State of (NCT of Delhi) 2009 (2) KLT 632 (SC). The question involved in the above case was whether a return of cheque by the bank on the ground that it was reported lost by the drawer would attract the penal provisi