The complainant must prove the existence of a legally enforceable debt for a successful prosecution under Section 138 of the Negotiable Instruments Act.

ORDER :

The concurrent verdicts of the Judicial First Class Magistrate Court-II, Pathanamthitta, in S.T. No.2015/2009 and that of the Additional Sessions Court (Ad-hoc)-I, Pathanamthitta, in Crl.A.No.253/2010, convicting and sentencing the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act,1881 (in short, ‘ NI Act’), are under challenge in this revision. Since the revision petitioner passed away during the pendency of this revision, his legal representatives were impleaded as additional petitioners 2 to 5.

2. The case of the complainant/second respondent is that two cheques of Rs.5,00,000/- each executed and issued by the original revision petitioner (referred to as ‘accused’ hereafter) towards the discharge of a liability he incurred with the second respondent in connection with three promissory notes, were dishonoured due to insufficiency of funds in the account of the accused, and that the accused did not care to make payment of the outstanding amount of Rs.10,00,000/-, despite the receipt of a statutory notice issued to him.

3. Before the Trial Court, the complainant was examined as PW1 and nine documents were marked as Exts P1 to P9. From the part of the accused, two witnesses were examined as DW1 & DW2, and four documents were marked as Exts D1 to D4. After an evaluation of the aforesaid evidence, the learned Magistrate found that the accused committed the offence under Section138 of the NI Act. He was accordingly convicted and sentenced to imprisonment till the rising of the court and to pay a compensation Rs.10,00,000/- to the complainant under Section 357 (3) of the Code of Criminal Procedure, 1973 .

4. The accused preferred appeal before the Sessions Court, Pathanamthitta, which was considered by the Additional Sessions Judge (Ad-hoc)-I, Pathanamthitta. As per the judgment dated 14.02.2012 in Crl.A.No.253/2010, the learned Additional Sessions Judge upheld the findings of the learned Magistrate and dismissed the appeal. Aggrieved by the above judgment of the Appellate Court, the petitioner filed the present revision before this Court.

5. Heard the learned counsel for the additional petitioners 2 to 5 and the learned counsel for the second respondent/de facto complainant.

6. Though various contentions are incorporated in this revision petition, the learned counsel for the petitioner confined himself to two challenges which, according to him, would vitiate the prosecution under Section 138 of the NI Act which the second respondent launched against the accused. Firstly, it is argued that the complainant/second respondent failed to establish that the impugned cheques were issued in discharge of a legally enforceable debt or liability. Secondly, it is pointed out that the evidence on record would reveal that the impugned cheques were not drawn on an account maintained in the name of the accused, and hence, the offence under Section138 of the NI Act is apparently not attracted.

7. The learned counsel for the petitioner, by referring to the proof-affidavit filed by the complainant before the Trial Court, submitted that the liability allegedly incurred by the accused in connection with the execution of three promissory notes, and the issuance of the cheques towards the discharge of the above liability is admitted in that proof affidavit. As rightly pointed out by the learned counsel for the petitioner, the complainant has stated in paragraph No.3 of the proof affidavit that the accused borrowed an amount of Rs.3,00,000/- on 16.05.2006, Rs.3,50,000/- on 20.09.2006, and again Rs.3,50,000/- on 20.07.2007 on the basis of the promissory notes executed on those dates in his favour. It is further stated in paragraph No.4 of the proof affidavit that the impugned cheques (Exts P1 & P2) were issued towards clearing the aforesaid liability of Rs.10,00,000/- which the accused owed the complainant. That being so, it is the incumbent responsibility of the complainant to establish the aforesaid liability i