The court upheld the conviction under Section 138 of the Negotiable Instruments Act, affirming the presumption of a legally enforceable debt and allowing time for payment.

ORDER :

K. V. Jayakumar, J.

This criminal revision petition is preferred impugning the judgment of the learned Additional District & Sessions Judge, Neyattinkara in Crl.Appeal No.250/2023 dated 16.04.2024.

2. The revision petitioner herein was the accused in S.T. No.2507/2016 of the Judicial First Class Magistrate Court, Kattakada and the appellant in Crl.Appeal No.250/2023.

3. The revision petitioner faced prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as ‘the Act’]. The 2^nd respondent is the complainant.

4. The case of the 2^nd respondent complainant is that, the accused had borrowed an amount of Rs.1,50,000/- from him and towards the discharge of the said liability, the accused had issued a cheque dated 15.03.2016.

5. On presentment, the cheque was returned unpaid stating the reason ‘funds insufficient’ .

6. The complainant issued a statutory notice and thereafter filed the complaint.

7. In order to prove his case, the complainant has examined as PW1 and Exts.P1 to P5 were marked. Thereafter, the accused was examined under Section 313(1)(b) of the Code of Criminal Procedure. The trial court, upon hearing the revision petitioner and the 2^nd respondent, convicted and sentenced the accused in the following manner:

““Accused is convicted under Section 255(2) of the Code of Criminal Procedure, 1973 for the offence punishablel under Section 138 of the Negotiable Instruments Act, 1881 and senterced him to undergo simple imprisonment for a period of seven days and to pay an amount of Rs. 3,00,000/- (Rupees three lakh only) being twice of the cheque amount as fine and in default of payment of fine amount accused shall undergo simple mprisonment for further three months and the fine amount, if realized, shall be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure, 1973".

8. Aggrieved by the judgment of the trial court, the accused approached the Sessions Court and preferred Crl.Appeal No.250/2023.

9. The learned Additional District & Sessions Judge, Neyyattinkara modified and reduced the sentence to imprisonment till rising of the court and to pay a fine of Rs. 1,50,000/- being the cheque amount and in default of payment, of fine, accused shall undergo simple imprisonment for a period of three months, if the fine amount is realized the same shall be paid to complainant as compensation U/S 357(1)(b) Cr.P.C.

10. Aggrieved by the judgment of the learned Sessions Judge, accused preferred this revision petition.

11. I have heard the learned counsel for the revision petitioner and the respondents.

12. Learned counsel for the 2^nd respondent would submit that the impugned judgment of the learned Sessions Judge is legally sustainable and no interference from this Court is warranted. The complainant has succeeded in proving the ingredients of Section 138 of the Act, beyond reasonable doubt. Moreover, the transaction is a genuine one. Both the trial court and appellate court have correctly appreciated the evidence on record and arrived at a proper conclusion.

13. Per contra, the learned counsel for the revision petitioner would submit that the ingredients of Section 138 of the Negotiable Instruments Act are not satisfied by the complainant. The court below had failed to note that there is no legally enforceable debt as against the petitioner. The disputed cheque was not issued towards the discharge of legally enforceable debt.

14. It is further submitted that the disputed cheque was not supported by consideration. The trial court and appellate court ought not have invoked the presumption under Section 139 of the Act.

15. The appreciation of evidence by the trial court and the appellate court are wrong and incorrect. The execution of the cheque is not proved by the complainant.

16. The complainant has failed to discharge the initial burden as to the drawal, execution and the handing over the cheque. Moreover, the revision petitioner has succeeded in r