A cheque issued not for a legally enforceable debt cannot lead to a conviction under Section 138 of the NI Act.

ORDER

This criminal revision has been preferred against the judgment dated 08.07.2022 passed in Crl.A.No.7 of 2021 on the file of the III Additional District & Sessions Judge, Erode at Gopichettipalayam, thereby confirming the conviction and sentence imposed by the trial court in STC.No.951 of 2018 on the file of the Judicial Magistrate No.1, Gopichettipalayam, dated 27.11.2020, for the offence punishable under Section 138 of NI Act.

2. The petitioner is the accused in the complaint lodged by the respondent herein. The respondent lodged complaint for the offence punishable under Section 138 of NI Act and alleged that on 29.07.2018, the petitioner borrowed a sum of Rs.5,00,000/- as hand loan for urgent need. On the said day, the petitioner had issued post-dated cheque for the said sum dated 07.08.2018. On 07.08.2018, the said cheque was presented for collection. However it was returned dishonoured for the reason 'account blocked situation covered in'. On request, once again it was re-presented for collection on 08.10.2018. For the second time, the cheque was returned dishonoured for the very same reason “account blocked situation covered in”. After causing statutory notice, the respondent lodged complaint.

3. On the side of the complainant, she had examined P.W.1 and marked Ex.P1 to Ex.P5. On the side of the petitioner, no one was was examined and no exhibits were marked. On the basis of the oral and documentary evidence, the trial court found the petitioner guilty for the offences under Section 138 of NI Act and sentenced her to undergo simple imprisonment for a period of six months and also awarded compensation to the tune of the cheque amount. Aggrieved by the same, the petitioner preferred appeal and the same was dismissed and confirmed the judgment of the trial court, against which this criminal revision has been filed.

4. The learned counsel for the petitioner would submit that the respondent is none other than a tenant of the petitioner's parents. The alleged cheque was handed over to her parents to avail loan by using the said cheque as security for her educational purpose in abroad. She had joined medicine in China, due to which she intended to avail loan. The said cheque was misused by the respondent. He also pointed out that the respondent never had any acquaintance with the petitioner. Further, the said amount was borrowed from her husband. The respondent did not know any detail of the petitioner. It was categorically admitted by her in cross examination. The petitioner, who is doing medicine, had no need to borrow any amount, that too from the respondent herein. Therefore, the cheque was not issued for any legally enforceable debt and without considering the above facts and circumstances, both the courts below convicted the petitioner for the offence punishable under Section 138 of NI Act.

5. Though notice was served and respondent's name has been printed in the cause list, no one appeared on behalf of the respondent before this Court today either in person or through pleader.

6. Heard, the learned counsel appearing for the petitioner and perused the records produced before this Court.

7. On perusal of records revealed that the respondent lodged complaint for the offence punishable under Section 138 of NI Act alleging that the petitioner borrowed a sum of Rs.5,00,000/- as hand loan and also issued post dated cheque. On the very same day, the cheque was presented for collection on 07.08.2018. It was returned dishonoured for the reason 'account blocked situation covered in'. Now it is to be seen that whether the said endorsement attracts the offence