Important points" The crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability-But both the courts below have found that no evidence whatsoever have been let in by the accused to prove his plea of discharge
" The petitioner/drawer of the cheque has voluntarily given authority to the complainant/Co-operative Bank to fill up the same in the manner indicated above, the execution of such a cheque which represents the actual liability cannot be said to be in any manner defective in terms of the provisions contained in NI Act.

The petitioner is the accused for offence punishable under Section 138 of the Negotiable Instruments Act, in S.T.No.237/2013 on the file of the Judicial First Class Magistrate Court-II, Thodupuzha, instituted on the basis of a complaint filed by the 1st respondent herein.

2. The trial court as per the impugned judgment rendered on 17.08.2015 has convicted the petitioner for the aforesaid offence and sentenced him to undergo simple imprisonment for three months and to pay Rs.76,938/- as compensation to the complainant under Section 357 (3) of the Code of Criminal Procedure, and in default thereof to undergo simple imprisonment for a further period of one month. Aggrieved thereby the petitioner had preferred Crl. Appeal No.139/2015 before the III Additional Sessions Judge, Thodupuzha. The appellate Sessions Court as per the impugned judgment rendered on 30.06.2017 has confirmed the conviction and modified the substantive sentence of simple imprisonment for three months by reducing the same to imprisonment till rising of the court and to pay an amount of compensation of Rs.76,938/- has been imposed with a default sentence clause of one month. The fine amount so realised was directed to be disbursed to the complainant as compensation under Section 357(3) of Cr.P.C. It is aggrieved by these verdicts of both the courts below, the petitioner has preferred the instant revision petition by invoking the remedies under Section 397 and 401 of Cr.P.C.

3. Heard Sri.S.Renjith, learned counsel appearing for the revision petitioner/accused and Sri.Saigi Jacob Palatty, learned Public Prosecutor for R2/State. In the nature of the orders proposed to be passed in support of the revision, notice to R1/complainant will stand dispensed with.

4. The gist of the allegations in the complaint is that for discharging the defaulted arrears in a loan transaction entered into between the petitioner/accused with the 1st respondent/complainant, the accused has issued Ext.P7 cheque dated 15.12.2012 for Rs.76,938/- and that the cheque when presented resulted in a dishonor due to insufficiency of funds. Thereupon the complainant, after fulfilling the requisite formalities, had instituted the present complaint which resulted in the trial.

5. During the trial, the Secretary of the complainant Cooperative Bank was examined as PW1 and marked Exts.P1 to P13 documents. The defence has not adduced any oral or documentary evidence.

6. As per the case projected in the complaint, the accused had availed a loan of Rs.50,000/- from the complainant Cooperative Bank concerned (Thodupuzha Primary Co-operative Agricultural and Rural Development Bank Ltd.), for which they agreed interest at the rate of 12% per annum with penal interest of 2.5%. On availing of the loan, the accused and his sureties had executed a promissory note in favour of the complainant and the accused had also entrusted with the complainant/Co-operative Bank with three signed blank cheque leaves bearing Nos.437335, 437337 and 437338 drawn from the account of the accused maintained at Federal Bank Ltd., Karimban Branch. As per Ext.P4 loan agreement dated 27.02.2008, the accused has agreed that in case of default in repayment of instalments, the cheque leaves may be filled up and arrears may be realised by sending the cheques for collection. Since the petitioner had defaulted the arrears of the loan repayments, the complainant Co-operative Bank had duly sent a notice calling upon the accused demanding payment of arrears upto 30.11.2012 on or before 05.12.2012 and clearly notifying therein that incase the petitioner does not pay the said amount, then one of the above said three cheques will be filled up and presented for collection by the complainant Co-operative Bank. The accused did not pay the arrears, the complainant Cooperative Bank had filled up Ext.P7 cheque No.437335 dated 05.12.2012 for an amount of Rs.76,938/- and presented the same before the collection Bank of the complainant. The cheque resulted i