ORDER

This Criminal Revision case has been filed to set aside the order in CA.No.80 of 2017 dated 07.12.2017 on the file of the learned II Additional District Sessions Judge, Salem, confirming the order in S.T.C.No.8 of 2013 dated 02.12.2016 on the file of Learned Judicial Magistrate (Fast Track), Court, Attur.

2. The petitioner is an accused in the complaint lodged by the respondent for the offence punishable under Section 138 of Negotiable Instruments Act. The crux of the complaint is that on 02.10.2012, the petitioner borrowed a sum of Rs.1,00,000/- for his urgent family expenses. In order to repay the same, the petitioner issued a cheque. The said cheque was presented for collection and the same was returned dishonored with an endorsement “Insufficient Funds”. Immediately, after causing legal notice, the respondent lodged a complaint.

3. On the side of the respondent, he was examined as P.W.1 and marked Exs.P.1 to P.6. On the side of the petitioner, no one was examined and no document was marked. On a perusal of oral and documentary evidences, the Trial Court found the petitioner guilty for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to pay a sum of Rs.65,000/- as fine, failing which, the petitioner shall undergo two months simple imprisonment. Aggrieved by the same, the petitioner preferred an appeal and the same was dismissed, confirming the order passed by the Trial Court. Hence, this revision. 4. The learned counsel for the petitioner raised grounds that the respondent categorically admitted in his cross examination that he received part of the cheque amount. Even then, he presented the cheque for the entire amount. Therefore, the petitioner is not liable to be punished for the offence punishable under Section 138 of Negotiable Instruments Act. In support of his contention, he relied upon the Judgment of the Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 830 in the case of Dashrathbhal Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr.

5. A perusal of records revealed that the respondent was examined as P.W.1. He deposed that the petitioner borrowed a sum of Rs.1,00,000/- for his urgent family expenses. In order to repay the same, the petitioner issued a cheque for a sum of Rs.1,00,000/-. The said cheque was presented for collection and the same was returned dishonored with an endorsement “Insufficient Funds”. After causing legal notice, the respondent lodged a complaint. Again, he was recalled and deposed that while pending the complaint the petitioner was in due of Rs.1,00,000/-. Now, he has to pay the remaining amount of Rs.65,000/-. Therefore, while pending the complaint, the petitioner paid a sum of Rs.35,000/- and he was in due of Rs.65,000/-.

6. The Hon'ble Supreme Court of India held in 2022 LiveLaw (SC) 830 in the case of Dashrathbhal Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr, is extracted hereunder, “30. In view of the discussion above, we summarise our findings below:

(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;

(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque; (iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;

(iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty l