The essential ingredient of Section 138 of the NI Act is that the cheque must be issued towards a legally enforceable debt, which was not established in this case.

J U D G M E N T

This appeal is at the instance of the complainant in CC No.523 of 2005 on the file of Judicial First Class Magistrate-II (Forest Offences), Punalur assailing the judgment in Crl.A No.46 of 2007 on the file of Additional Sessions Judge -III Kollam by which the conviction of the accused under Section 138 of NI Act by the trial court was reversed, and the accused was acquitted.

2. The case of the complainant was that, the accused borrowed Rs.75,000/- from her and issued a post dated cheque bearing date 7/7/2005 for Rs.75,000/- drawn on her treasury savings account. When the cheque was presented for collection, it was returned with the reason “Intact of credit” which according to the complainant means insufficiency of funds. Thereafter, she sent Ext.P4 lawyer notice dated 19/7/2005. In spite of receipt of that notice, the amount was not returned by the accused. Hence, she filed complaint against her under Section 138 of the NI Act.

3. On taking cognizance and on appearance of the accused before the trial court, particulars of offence was read over to which she pleaded not guilty and claimed to be tried.

4. PW1 was examined and Exts P1 to P5 were marked from the side of the complainant. DWs 1 to 5 were examined and Exts.D1 and D2 were marked from the defence side.

5. On analyzing the facts and evidence and on hearing the rival contentions from either side, the trial court found the accused guilty under Section 138 of NI Act, and she was convicted and sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.75,000/- to the complainant, with a default sentence of simple imprisonment for one month more.

6. Aggrieved by the conviction and sentence, the accused filed criminal appeal No.46 of 2007. The appellate court, on an anxious consideration of the facts and evidence, found that a blank cheque issued by the accused was filled up by the complainant, and there was no convincing evidence to prove that the cheque was issued towards discharge of any legally enforceable debt. So the accused was acquitted under Section 138 of NI Act against which the complainant has preferred the present appeal.

7. Heard learned counsel for the appellant and learned counsel for the 1st respondent.

8. Learned counsel for the appellant would say that, the appellant is the sister in law of the accused, and the accused borrowed Rs.75,000/- from her, and towards discharge of that debt, she issued Ext.P1 cheque drawn on her treasury savings account.

9. The definite case of the 1st respondent from the very beginning was that, while she was residing along with the appellant and her husband, who is none other than her own brother and wife, she had given a blank cheque as a security in Masters Jewellery for purchasing gold ornaments in connection with the marriage of the sister of the appellant, as they were not having the full amount to pay the purchase bill. But subsequently when the balance amount was paid, the cheque was received back by the appellant and her husband. Thereafter, the relationship between the appellant and her husband got strained, and the appellant eloped with one Mr.Jayakumar. Later, misusing the blank cheque of the accused, which the appellant had got back from the jewellery, she filed a false complaint against her. In order to substantiate her case, she examined DWs 1 to 5.

10. Learned counsel for the 1st respondent would contend that, there is no evidence at all to show that Ext.P1 cheque was presented before the treasury, and it was dishonored for the reason ‘insufficient funds’. Ext.P2 is a chit paper with the endorsement “Intact of credit”. It will not show that it was issued from the treasury savings bank, or the date of its issuance.

11. Ext.D1 will show that the last transaction in the treasury savings bank account of the accused was on 2/1/2000, and that ac