The issuance of a cheque must relate to a legally enforceable debt; otherwise, no offence under Section 138 is established.

ORDER

This Criminal Revision Case has been preferred against the judgment dated 20.09.2022 passed in C.A.No.101 of 2021 by the learned V Additional District and Sessions Judge, Coimbatore, thereby confirmed the conviction and sentence u/s 138 of Negotiable Instruments Act imposed vide judgment dated 08.03.2021 passed in C.C.No.659 of 2018 by the learned Judicial Magistrate, Fast Track Court No.I @ Magisterial Level, Coimbatore.

2. The petitioner is the accused in the complaint lodged by the respondent for the offence u/s 138 of Negotiable Instruments Act (in short 'the NI Act') alleging that the respondent's wife lend money as loan in favour of the petitioner's wife to the tune of Rs.5,93,500/- from 13.04.2016 to 10.09.2017. Thereafter, the respondent had lent a sum of Rs.6,07,800/- to the petitioner's wife from 02.05.2016 to 25.07.2017 and the respondent had lent a sum of Rs.38,200/- to the petitioner as a loan. Further, the respondent's wife lent a sum of Rs.69,000/- to the petitioner's brother-in-law. While being so, the petitioner had borrowed another sum of Rs.2,00,000/- from the respondent by executing two promissory notes for a sum of Rs.13 lakhs and Rs.2 lakhs. In order to repay the entire loan amount, the petitioner had issued a cheque bearing No.082613 dated 25.06.2018 drawn on Union Bank of India, Main Branch, Coimbatore in favour of the respondent for a sum of Rs.15,00,000/-. When the said cheque was presented on 25.06.2018 for collection, the same was returned for the reason “Funds Insufficient” by return memo dated 26.06.2018. After causing statutory notice, the respondent filed a complaint u/s 138 of NI Act on the file of the learned Judicial Magistrate, Fast Track Court No.I at Magisterial Level, Coimbatore in C.C.No.659 of

2018.

3. After elaborate discussions, the trial court convicted the petitioner u/s 138 of the NI Act and sentenced him to undergo simple imprisonment for six months and to pay a compensation of Rs.15,00,000/- to the respondent. Challenging the same, the petitioner has filed an appeal in Criminal Appeal No.101 of 2021 before the learned V Additional District and Sessions Judge, Coimbatore and the learned Sessions Judge, vide judgment dated 20.09.2022, dismissed the appeal by confirming the conviction and sentence passed by the trial court.

Aggrieved by the same, the present revision is filed.

4. The learned counsel for the petitioner would submit that the respondent miserably failed to prove the complaint u/s 138 of NI Act. Even according to the respondent, the respondent had lent a sum of Rs.38,200/- and Rs.2 lakhs to the petitioner. The other loan amounts which were mentioned in the complaint were lent by the respondent's wife to the wife and brother-in-law of the petitioner. Therefore, the cheque was not issued for any legally enforceable debt. That apart, even assuming that the petitioner admitted his liability and issued promissory notes for a sum of Rs.13 lakhs and Rs.2 lakhs and thereafter, issued cheque for Rs.15 lakhs, the petitioner had repaid the amount to the tune of Rs.3,02,000/-. After deducting the said amount, it comes to Rs.14,10,905/-, which exceeds the cheque amount. Therefore, no offence is made out u/s 138 of NI Act and even then, the Trial Court mechanically convicted the petitioner, which was confirmed by the Appellate Court, which are wholly unsustainable and the same are liable to be set aside. In support of his contentions, he relied upon several judgments of this Court.

5. Per contra, the learned counsel appearing for the respondent submitted that though the loan amount was received by the petitioner's wife and brother-in-law, the petitioner admitted the entire liability and executed promissory not