The complainant must prove the source of funds for any alleged debt under Section 138 of the Negotiable Instruments Act, as the presumption of debt is rebuttable.

ORDER

This criminal revision petition is filed against the conviction and sentence imposed on the revision petitioner as per judgment dated 10.01.2019 in ST No.2482/2010 of the Judicial First Class Magistrate Court-I, Varkala and the judgment dated 20.11.2020 in Criminal Appeal No.15/2019 of the Additional Sessions Judge-II, Thiruvananthapuram. (Hereinafter parties are mentioned according to their rank before the trial court.) It was a prosecution initiated by the complainant against the accused alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act').

2. The complainant’s case is summarized as follows:

The accused had issued a post-dated cheque No.088210 dated 01.03.2010 drawn on State Bank of Travancore.

Trivandrum main branch to the complainant for discharging legally enforceable debt of Rs.2,50,000/- . When the cheque was presented for encashment through Indian Overseas Bank, Edava Branch, it was dishonored for the reason "fund insufficient". Thereafter the complainant caused to issue legal notice to the accused by demanding cheque amount. Despite the receipt of the notice, the accused did not repay the cheque amount. Thus the accused alleged to have committed above mentioned offences.

3. To substantiate the case, PWs 1 to 3 were examined on the side of the complainant and Exts.P1 to P10 were marked. Exts.D1 and D2 are the documents marked on the side of the accused. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only). In default of payment of the fine amount, the accused was directed to undergo simple imprisonment for three months.

4. Aggrieved by the conviction and sentence, an appeal is filed before the Sessions Court, Thiruvananthapuram. The Additional Sessions Judge-II, Thiruvananthapuram considered the appeal and confirmed the conviction imposed on the accused. The sentence is reduced to simple imprisonment till rising of court. The fine and default sentence imposed by the trial court is confirmed. Aggrieved by the conviction and sentence, this revision petition is filed.

5. Heard the learned counsel appearing for the accused and the learned counsel for the complainant.

6. The counsel for the accused submitted that the conviction and sentence imposed by the trial court is unsustainable. The counsel raised different contentions. The counsel submitted that in the light of the dictum laid down by the Apex Court in Subramani K. v. K. Damodara Naidu [2014 (4) KHC 533] , the prosecution is unsustainable. In the above decision, the Apex Court laid down a principle that a complainant in a cheque case has to necessarily prove the source of income for the debt. It is submitted that the source of the complainant to raise the amount involved in this case is not proved. It is also submitted by the counsel that in the notice and the complaint, the complainant failed to mention the purpose for which the accused had allegedly borrowed the money and thereafter in the chief affidavit, a new claim stating that the money was borrowed for paying gulf travelling expense of the accused. The accused produced Ext.D3 passport which shows that the accused had travelled to gulf and returned by 02.01.2008. The said date is far before the date of transaction, i.e., 02.10.2009 is the submission. The counsel also submitted that the evidence adduced by the complainant is