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TMI Blog2020 (11) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as, 'NI Act') rendered by the trial court to undergo simple imprisonment for a period of three months and also to pay a compensation of Rs. 2,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months more under Section 138 of the NI Act. 2. The revision petitioner was the accused in CC No.483 of 2004 on the file of the Judicial First Class Magistrate Court-I, Chengannur and the appellant in Crl.Appeal No.114 of 2006 on the file of the Additional Sessions Court-I, Mavelikkara. The 1st respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the NI Act against the accused. Upon consideration of the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied all the incriminating circumstances. The accused submitted that he borrowed an amount of Rs. 2,00,000/- from the complainant and his wife on 15.02.1999. The accused further submitted that at the time of borrowing the amount, he issued two blank cheques as security for the amount and thereafter, he repaid the whole amount with interest. In support of the defence, DW1 was examined and marked Exts.D1 and D2. Ext.D1 is the reply notice and Ext.D2 is the receipt showing the dispatch of Ext.D1. 5. On appreciation of the evidence, the learned magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for want of sufficient funds. The complainant issued statutory notice calling upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. That apart, Section 139 of the NI Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the NI Act, it becomes evident that in a trial under Section 138 of the NI Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his wife. In Ext.D1, he further contended that he had repaid an amount of Rs. 3,22,000/- to the complainant in 62 instalments. According to him, the accused repaid another sum of Rs. 4,20,000/- in 56 instalments. On being questioned under Section 313(1)(b) of the Code of Criminal Procedure, the accused stated that altogether, he paid an amount of Rs. 7,92,000/- to the complainant and his wife. It is true that the accused had set up the plea of discharge. In this connection, it is pertinent to note that the accused had admitted execution of the cheques. The only contention is that he had discharged the amount covered under Exts.P1 and P2 cheques. Oral evidence adduced by DW1 is not sufficient to prove the plea of discharge advanced by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted with under any threat or coercion. That apart, the accused has no case that the cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. 11.The learned counsel for the accused placed reliance on the decision reported in Santhi C. v. Mary Sherly & Another [2011 (3) KHC 22] and contended that issuance of a blank signed cheque would not amount to issuance of cheque and the issuance of a blank cheque can only be treated as a cheque leaf. This decision is to be evaluated in the light of the dictum in Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197]. In the said decision, the Supreme Court held that in view of Section 139 of the NI Act read with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complaint was filed before the trial court in 2007. The complainant has been prosecuting this case for the last 16 years. 13.Coming to the question of sentence, Exts.P1 and P2 cheques were executed as early as on 27.04.2004. The accused has been conducting this criminal case for the last 16 years. In Kaushalya Devi Massand v. Roopkishore Khore [2011 KHC 281], the apex court held that jail sentence is not mandatory in an offence under Section 138 of the NI Act. Considering the facts and circumstances, it is just and proper to modify the sentence awarded by the two courts below by sustaining the conviction imposed. In the result, the criminal revision petition is partly allowed. The conviction against the accused under Section 138 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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