The presumption of a legally enforceable debt under Sections 138 and 139 of the N.I. Act requires the accused to prove otherwise, reinforcing the reverse onus principle in cheque dishonor cases.

O R D E R

The revision petition is filed calling in question the legality and correctness of the judgment in Crl.A.No.197/2009 of the Court of the Sessions Judge, Manjeri (Appellate Court), confirming the judgment in C.C.No.158/2008 of the Court of the Judicial First Class Magistrate-II, Perinthalmanna(Trial Court), holding the revision petitioner guilty and convicting and sentencing him for the offence under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act’, for the sake of brevity). The revision petitioner was the accused and the second respondent was the complainant before the Trial Court.

Relevant Factual Matrix:

2. The first respondent had filed the complaint before the Trial Court, alleging that the revision petitioner had issued Ext P2 cheque in discharge of a legally enforceable debt of Rs.1,50,000/-. The cheque on presentation to the bank for collection, got dishonoured by Ext P3 memorandum due to ‘insufficient funds’ in the bank account of the revision petitioner. Although the second respondent had issued Ext P4 statutory lawyer notice, the notice was returned with an endorsement that ‘the addressee left’. The revision petitioner failed to pay the demanded amount.

Hence, he committed the above offence.

3. The learned Magistrate took cognizance of the offence against the revision petitioner. The revision petitioner denied the substance of accusation read over to him. In the trial, the complainant was examined as PW1 and Exts P1 to P4 were marked in evidence. The revision petitioner had denied the incriminating circumstances appearing against him in the questioning under Section 313 of the Code of Criminal Procedure, 1973 (‘Code’, for the sake of brevity). The revision petitioner got himself examined as DW1 and marked Ext D1 series subject to proof.

Trial Court judgment:

4. The Trial Court, after analysing the materials placed on record, found the revision petitioner guilty and convicted him for the offence under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of four months and to pay a compensation of Rs.1,50,000/-, and in default to undergo simple imprisonment for a further period of three months.

5. Aggrieved by the said judgment, the revision petitioner filed Criminal Appeal No.197/2009 before the Appellate Court.

Appellate Court judgment:

6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, confirmed the conviction; but modified the sentence by reducing the substantive sentence to one day(till the rising of the Court) and maintained the compensation part in tact.

7. It is challenging the concurrent judgments of the courts below; the revision petition is filed.

8. Heard; Sri. C.A. Majeed, the learned counsel appearing for the revision petitioner and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the first respondent – State.

9. The learned counsel appearing for the revision petitioner argued that the impugned judgments are erroneous on three grounds:

(i)Notice was not properly served on the revision petitioner;

(ii)There was no legally enforceable debt as per Ext P2 cheque;

&

(iii)The revision petitioner had arranged the Visa for the second respondent. Therefore, his liability stood discharged.

10. The question is whether there is any illegality, impropriety or irregularity in the judgments of the courts below.

11. The second respondent’s case is that the revision petitioner had in discharge of a legally enforceable debt, issued Ext P2 cheque on the basis of Ext P1 agreement and the cheque got dishonoured due to insufficiency of funds in the bank account of the revision petitioner. Although the second respondent issued Ext P4 statutory lawyer notice, the notice was returned with an endorsement as ‘the addressee left’.

12. The first contention of the revision petitioner is that, there was no proper service of notice as contemplated under the proviso (b) to Section 138 of the N.I. Act. Proviso (b) to