The presumption of issuance of a cheque under the Negotiable Instruments Act can be rebutted by the accused if they create doubt regarding the existence of a legally enforceable debt.

O R D E R

Revision Petitioner is the accused in C.C.No.97/2010 on the files of Judicial First Class Magistrate Court, Kalpetta. She assails the judgment in Crl.A.No.24/2016 of Sessions Court, Kalpetta by which the Sessions Court confirmed the conviction and sentence against her in C.C.No.97/2010 for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as ‘NI Act’).

2. The parties shall be referred to as complainant and accused.

3. The case of the complainant in brief is that accused borrowed a sum of ₹5 lakhs from him in the 1^st week of November 2009, agreeing to repay the same within three months. When demanded back the amount, accused issued Ext.P1 cheque for ₹5 lakhs drawn on State Bank of India, Kainatty Branch. Upon presentation of Ext.P1 cheque, it was returned dishonoured due to 'insufficient funds' and also stating the reason 'drawers signature incomplete'. In spite of receipt of notice dated 27.3.2010, accused failed to pay the amount covered by the cheque. Accused thereby committed the offence punishable under Section 138 of N.I Act.

4. Accused pleaded not guilty to the accusation and denied the borrowal of any amount from the complainant and denied the issuance of Ext.P1 cheque to the complainant in discharge of any debt or liability.

5. Before the trial court, the complainant got himself examined as PW1 and marked Exts.P1 to P5. On the side of the accused, DW1 was examined and Exts.D1 to D6 were marked. 6. After trial, the learned Magistrate found the accused guilty of the offence punishable under Section 138 N.I Act and she was convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of ₹5 lakhs with default custodial sentence. It was further ordered that the fine amount, if realised, shall be paid to the complainant as compensation. The conviction and sentence was confirmed by the Sessions Court, Kalpetta in Crl.A.No.24/2016.

7. Assailing the said judgment of conviction and sentence accused has preferred this revision contending that the trial court and the appellate court miserably failed to appreciate the evidence in its correct perspective; that the accused has not borrowed any amount from the complainant and there was no legally enforceable debt; that the trial court and the appellate court failed to take note of the fact that O.S.No.180/2010 filed by the complainant against the accused before the Sub Court, Sulthanbathery for realization of the amount based on the very same cheque was dismissed by the Sub Court, Sulthanbathery with a finding that there was no financial transaction between the complainant and the accused and the complainant had no financial capacity to lend such a huge amount of ₹5 lakhs. It was further contended that the complainant has not proved the execution of Ext.P1 cheque and therefore the conviction and sentence against the accused are liable to be set aside.

8. Per contra, the learned counsel for the complainant contended that the execution of Ext.P1 cheque by the accused for a legally enforceable debt stands proved and therefore there are no reasons at all to interfere with the impugned judgment.

9. The point for consideration is whether the impugned judgment needs any interference by this Court.

10. The version of the complainant, who was examined as PW1 is that in the 1^st week of November 2009 accused approached him for a loan of ₹5 lakhs, agreeing to repay the same within three months and accordingly, he lent an amount of ₹5 lakhs to the accused. After three months, when he demanded back the amount, accused issued Ext.P1 cheque drawn on State Bank of India, Kainatty Branch. Though he presented Ext.P1 cheque for collection, it was returned dishonoured stating the reason ‘funds insufficient' and 'drawers signature incomplete’. Ext.P2 is the memo received from the bank. Ext.P3 is the copy of the notice sent to the accused intimating the factum of dishonour of the cheque. Ext.P4 is the acknowledgmen