IMPORTANT POINTS
The prosecution under Section 138 of the N.I.Act also initiated on the same set of facts- In the civil suit, the complainant was non-suited, finding that the amount was not recoverable from the accused. Hence, the amount which was found not recoverable on merits by a civil court cannot be recovered in a prosecution under Section 138 of the N.I.Act.

ORDER :

This criminal revision petition is directed against the judgment dated 29.12.2006 rendered by the third Additional Sessions Court, (Ad hoc) Fast Track-I, Thrissur, in Crl.Appeal No.599 of 2004, whereby the learned third Additional Sessions Judge dismissed the appeal, confirming the conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as 'the N.I.Act') rendered by the trial court against the revision petitioner/accused to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. If the fine amount is realised, the trial court ordered Rs.90,000/-as compensation payable to the complainant under Section 357(1) of the Cr.P.C.

2. The revision petitioner was the accused in S.T.No.612/99 on the file of the Chief Judicial Magistrate Court, Thrissur and the appellant in Crl.Appeal No.599/2004 on the file of the third Additional Sessions Court, (Ad hoc), Fast Track I, Thrissur. The 1st respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the N.I.Act against the accused. Upon consideration of the complaint, the learned Magistrate is prima facie satisfied that the case is made out against the accused. Hence, the learned Magistrate took cognizance of the offence under Section 138 of the N.I.Act and the case was taken on file as S.T.No.612/99. Parties are hereinafter referred to as the 'complainant' and 'accused' according to their status in the court below unless otherwise stated.

3. It is the case of the complainant that the accused had entered into a lease agreement with the complainant company on 09.05.97. Consequent to the agreement, the vehicle bearing registration No.KL7Q7646 was leased out to the accused on agreeing to pay a monthly rent of Rs.11,505/-to the company for 48 months without any default. When the accused committed default in paying the installment, the company repossessed the vehicle and sold it for Rs.2,50,000/-. The balance amount due from the accused was Rs.76,247.99.

When the company requested the accused to pay the amount, he issued a cheque in favour of the complainant for a legally enforceable debt. When the said cheque was presented for encashment it was dishonoured for the reason 'insufficient fund'. The complainant sent a notice to the accused demanding the amount covered under the cheque. The accused received the notice. He had neither sent any reply nor paid the amount covered under the cheque.

4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, PW1 was examined and marked Exts.P1 to P9 on the side of the prosecution. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the incriminating circumstances appearing in the evidence against him. DW1 was examined and marked Exts.D1 to D8 on the side of the accused.

5. On appreciation of the evidence, the learned Magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for the reason 'insufficient fund'. The complainant issued statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. The amount was not paid within the statutory period. Hence, the learned Magistrate concluded that the cheque was issued by the accused for the discharge of debt or liability.

6. Heard Smt.Latha Prabhakaran, the learned counsel for the revision petitioner, Sri.Sabu.S, the learned counsel for the 1st respondent and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 2nd respondent-State.

7. In order to determine the question whether the