The dishonor of cheque under Section 138 was upheld by the courts, affirming statutory presumptions of debt, and dismissing defense claims of cheque misuse.

O R D E R

The concurrent findings of the Judicial First Class Magistrate Court-II, Kozhikode and the Additional Sessions Court-I, Kozhikode, holding the petitioner guilty of commission of offence under Section 138 of the Negotiable Instruments Act (for short, ‘the N.I Act’), are under challenge in this revision petition. The learned Magistrate had sentenced the petitioner to simple imprisonment for five months with a direction to pay compensation Rs.1,60,000/- under Section 357(3) Cr.P.C to the complainant. The Appellate Court upheld the conviction but modified the tenure of imprisonment to imprisonment till the rising of Court, while retaining the direction for payment of compensation as such, with a default clause of simple imprisonment for five months.

2. The case of the complainant/first respondent was that a cheque for an amount of Rs.1,60,000/- executed and issued by the petitioner towards discharge of the debt which he owed the complainant in connection with a partnership business jointly conducted by them, was dishonoured due to insufficiency of funds in the account of the petitioner, and that the petitioner did not care to make payment of the cheque amount, despite the receipt of statutory notice from the complainant.

3. Before the Trial Court, the complainant was examined as PW1 and six documents were marked as Exts.P1 to P6. The petitioner took up a contention that a security cheque which the complainant obtained from him at the time when he subleased a building to the petitioner, had been manipulated and misused for the institution of a false complaint against him. In support of the above defence case, two witnesses and the petitioner tendered evidence before the Trial Court as DW1 to DW3, and five documents were marked as Exts.D1 to D5. The learned Magistrate, after an evaluation of the aforesaid evidence, and hearing both sides, held that the complainant successfully established the execution and issuance of Ext.P1 cheque by the petitioner towards the discharge of a legally enforceable debt of Rs.1,60,000/-. It was further observed by the learned Magistrate that the defence case could not be established even on the yardstick of preponderance of probabilities. The Appellate Court, after re-appraisal of the whole evidence, concurred with the above finding of the learned Magistrate. However, a slight modification was made to the sentence awarded by the Trial Court by limiting the detention of the petitioner to a single day till the rising of Court. Now, the petitioner is before this Court with this revision challenging the aforesaid concurrent findings of the courts below.

4. Since there was no representation for the petitioner even after repeated adjournments, Adv. Ms.Amrin Fathima was appointed as Amicus Curiae to represent the petitioner.

5. Heard the learned Amicus Curiae representing the revision petitioner, the learned counsel for the first respondent, and the learned Public Prosecutor representing the State of Kerala.

6. As already stated above, the defence taken by the petitioner before the courts below was that the complainant had misused a cheque which he obtained from the petitioner at the time of subleasing a building to him. According to the petitioner, the aforesaid cheque was obtained as a signed blank cheque towards advance payment of the sublease, and that it was not returned by the complainant even though the petitioner had discharged the financial liability he incurred with the complainant. According to the petitioner, as per the case he highlighted before the Trial Court, the complainant requested to include him also as a partner in the automobile business being conducted by the petitioner in the building subleased to him, but he refused to accept the above request. Thus, it is alleged that the