A cheque issued merely as a security deposit, without constituting a legally enforceable debt, cannot support a conviction under Section 138 of the Negotiable Instruments Act.

ORDER :

1. This criminal revision has been preferred against the judgment dated 01.11.2022 passed in Crl.A.No.200 of 2019 on the file of the III Additional Sessions Judge, Chennai, thereby confirmed the order dated 25.04.2019 passed in CC.No.6189 of 2012 on the file of the Fast Track Court No.1, Egmore, Allikulam, Chennai thereby convicted the petitioner for the offence punishable under Section 138 of NI Act.

2. The petitioner is the accused in the complaint lodged by the respondent for the offence punishable under Section 138 of NI Act alleging that the petitioner was entrusted for doing interior decoration at the office of M/s. Sriram Capital at Chennai. In this regard, the petitioner had issued a cheque in favour of the respondent for a sum of Rs.3,00,000/- along with an undertaking letter as security deposit. It was presented for collection, but it was returned dishonoured for the reason 'insufficient funds'. After causing statutory notice, the respondent filed complaint and the same was taken cognizance by the trial court.

3. On the side of the respondent, he had examined himself as P.W.1 and marked Ex.P1 to Ex.P8. On the side of the petitioner, he was examined as D.W.1 and marked Ex.D1 to Ex.D6. On the basis of the oral and documentary evidence, the trial court convicted the petitioner and sentenced him to undergo six months simple imprisonment and also awarded compensation to the tune of the cheque amount. Aggrieved by the same, the petitioner preferred appeal and the same was also dismissed and the judgment of conviction was confirmed and the sentence imposed by the trial court was upheld, against which the present revision has been filed.

4. The learned counsel for the petitioner would submit that the cheque was marked as Ex.P3 and the same was a 'stale one'. After expiry of the cheque, it was presented for collection. The cheque was issued on 21.05.2012 and the same was presented for clearing on 22.08.2012 i.e. after validity period of three months. Therefore, no offence is made out under Section 138 of NI Act as against the petitioner. Before the trial court, the petitioner did not examine the banker of the respondent. But he filed application under Section 391 of Cr.P.C. before the appellate court and he was permitted to examine the banker of the respondent. Accordingly the respondent examined the bank manager as DW2 and he categorically deposed that Ex.P3 i.e. the cheque was presented only on 22.08.2012. Though the cheque was returned for the reason 'insufficient funds', it does not mean that it was presented in time. However, the appellate court, without considering the evidence of DW2, mechanically confirmed the judgment of the trial court and convicted the petitioner.

5. Per contra, the learned counsel for the respondent would submit that DW2 deposed that Ex.P3 was returned dishonoured for the reason 'unsufficient funds'. Therefore, it was presented for collection within the validity period i.e. within the period of three months from the date of issuance of the cheque. If the cheque was presented beyond the validity period of the cheque, the banker definitely would have returned the same as stale one. Admittedly, the cheque was taken for collection and the same was returned for the reason 'insufficient funds'. Therefore, both the courts below rightly convicted the petitioner and it does not warrant any interference by this Court.

6. Heard, the learned counsel appearing on either side and perused the records produced before this Court.

7. The only point arising in this case is that whether the cheque was presented beyond its validity period and if the cheque was presented within the validity period, whethe