Criminal Revision Petition No.1507 of 2005

27th July, 2008

Petitioner Counsel: Smt. VIJETHA R. NAIK
Respondent Counsel: Smt. KAMAL , BHANU

Cases Cited:
Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, 2008 ALL MR (Cri) 1164 (S.C.)=2008 AIR SCW 738 [Para 11,18,20]
John K. John Vs. Tom Varghese, 2007 ALL MR (Cri) 3283 (S.C.)=2007 AIR SCW 6736 [Para 29]

JUDGMENT

-This Revision petition is filed under Section 397 read with Section 401 of Cr.P.C, questioning the legality and correctness of the judgment dated 19.8.2005 passed by the Presiding Officer, Fast Track Court-II, Mandya, in Crl.A.No.86/2004 dismissing the said appeal filed by the petitioner herein and affirming the judgment of conviction and sentence passed by the Additional Civil Judge, (Jr.Dn.) & JMFC, Srirangapatna in CC N0.457/2003, convicting the petitioner herein for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act') and sentencing him to undergo imprisonment for a period of six months and to pay a fine of Rs,2,000/- in default to undergo simple imprisonment for two months and also directing the petitioner to pay compensation of Rs.75,000/- to the complainant being the value of the cheque.

2. The respondent herein is the complainant before the learned Magistrate. I shall refer to the parties herein with reference to their ranking in the Court below.

3. The complainant filed a complaint against the accused under Section 138 of the N.I. Act, inter-alia contending that the accused for the purpose of improving his business and for repayment of his loan, borrowed a sum of Rs.75,000/- from the complainant on 20.5.2002 and for discharging the said liability, the accused issued post dated cheque bearing No.480735 dated 10.3.2003 for Rs.75,000/- drawn on Allahabad Bank, Mysore Branch and requested the complainant to present the said cheque for encashment on 10.3.2003. When the complainant presented the said cheque on 10.3.2003 for encashment through his Banker, the said cheque came to be returned with an endorsement 'payment stopped by the drawer' and for 'insufficient funds' on 28.3.2003. Thereafter, the complainant issued a legal notice to the accused on 2.5.2003 informing the accused about the dishonour of the cheque and demanding payment of the amount covered under the cheque. Though the accused received the said notice on 9.5.2003, he has neither replied the notice nor has complied with the demand made therein. With these contents the complaint was filed on 13.7.2003.

4. After service of summons, the accused appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried.

5. During the course of trial before the learned Magistrate, the complainant examined himself as P.W.1 and got marked Exs.P.1 to P.8. The accused examined one Mahavir Jain as DW.1 to prove his defence and got marked Ex.D.1.

6. During trial, the defence of the accused was that he had taken loan on his vehicle from one Mahaveer Financiers and at the time of taking loan from the said financiers, he had given two blank cheques bearing Nos.480734 and 480735 and on 14.2.2003 when he cleared the said loan, he took back those two blank cheques and thereafter those two cheques were found missing. It was also his defence that later when he received the notice from one of his ex-employee namely Shekar demanding him to pay the amount covered under one of the above two cheques, he came to know that the said Shekar had stolen those two cheques and the complainant has presented one of the two cheques. According to the accused, he was not due any amount to the complainant nor the cheque in question was issued for discharge of any legal liability due by him to the complainant.

7. After the parties led evidence, the learned Magistrate examined the accused under Section 313, Cr.P.C and after hearing the learned counsel appearing on both the sides, the learned Magistrate by judgment dated 29.10.2004 held that the complainant has proved that the accused had issued the cheque in question towards discharge of legal liability due by him to the complainant and that the cheque in question has been dishonoured when presented for encashment and inspite of service of notice on the accused, the accused has failed to comply with the demand made therein by paying the amount covered under the cheque. In that view of the matter, the learned Magistrate held that the accused is guilty of the offence punishable under Section 138 of the N.I. Act and accordingly passed the order of conviction and sentence as noted earlier.

8. Being aggrieved by the said judgment of conviction and sentence, the accused filed Criminal Appeal No.86/2004 before the Sessions Court, Mandya. The Presiding Officer of FTC-II to whom the appeal was assigned, heard the matter. During the pendency of the said appeal, the accused sought to produce certain additional documents by filing an application and the said application came to be allowed by the Appellate Court. Those documents were marked as Exs.P.2 to P.13. After hearing the counsel for the parties, the Appellate Court by the judgment under revision affirmed the finding of the Trial Court and held that the accused is guilty of the offence punishable under Section 138 of the N.I. Act.

9. Being aggrieved by the said judgment passed by the Appellate Court, the accused-petitioner has presented this Revision Petition questioning the legality and correctness of the judgment of the Courts below.

10. I have heard the learned counsel appearing on both sides.

11. Learned counsel appearing for the petitioner vehemently contended that the Courts below have utterly failed to see that the complainant has not proved the existence of legally enforceable debt or liability against the accused. In this regard, he contended that the evidence on record clearly establishes that the complainant had no financial capacity to advance loan of Rs.75,000/- as on the alleged date of lending, therefore, the Courts below ought to have held that the complainant had utterly failed to prove the existence of debt. He further contended that the material on record indicates that there was no agreement for payment of interest on this amount of Rs.75,000/- and this circumstance also suggests that there was no loan transaction between the complainant and the accused. He further contended that the Courts below have erroneously held that presumption under Section 139 of the N.I. Act would extend even to the existence of legally enforceable debt or liability. According to the learned counsel, the presumption under Section 139 of the N.I. Act is only to the extent that the cheque is issued for discharge of debt or liability and this presumption does not extend to the existence of legally enforceable debt or liability, therefore, the complainant is under an obligation to prove the existence of legally enforceable debt or liability as a matter of fact to the satisfaction of the Court. It is only if the complainant establishes the existence of legally enforceable debt or liability, then presumption under Section 139 of the N.I. Act to the effect that the cheque issued was for discharge of such legally enforceable debt or liability could be drawn. In this regard, he placed reliance on a recent decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, 2008 AIR SCW 738 : [2008 ALL MR (Cri) 1164 (S.C.)]. The learned counsel submitted that in the case on hand, as the complainant has not placed any evidence worthy of acceptance to prove the existence of legally enforceable debt or liability against the accused, the Courts below are not justified in drawing presumption under Section 139 of the N.I. Act and on that basis holding the accused guilty of the offence punishable under Section 138 of the N.I. Act. With these submissions, the learned counsel sought for setting aside the judgment of the Courts below and for acquittal of the accused.

12. On the other hand, learned counsel for the respondent-complainant contended that there is sufficient evidence on record to prove that the accused borrowed a sum of Rs.75,000/- from the complainant and for discharge of the said debt he issued the cheque in question. In this regard, learned counsel submitted that during the cross-examination of P.W.1-complainant, there is absolutely no suggestion put to him to the effect that he had no financial capacity to lend a sum of Rs.75,000/-. Therefore, in the absence of any such suggestion, the learned counsel submitted that there is no substance in the contention of the learned counsel for the petitioner with regard to the proof of existence of legally enforceable debt or liability. Learned counsel further submitted that the conduct of the accused in taking different stand at different stages would be a circumstance to hold that the defence of the accused was not consistent and acceptable. Therefore, having regard to the fact that the accused has admitted issuance of cheque, the Courts below have rightly drawn presumption available under Section 139 of N.I. Act, as such, the Courts below have not committed any error in holding the accused guilty of the offence under Section 138 of the N.I. Act. With these contentions, the learned counsel sought for dismissal of the petition.

13. In the light of the above, the point for my consideration is;

"i) Whether the Courts below were justified in holding the accused guilty of the offence under Section 138 of the N.I. Act ?"

14. Perusal of the judgment of the Trial Court indicates that the learned Magistrate after referring to the oral evidence of P.W.1 and DW.1 has gone on to state that the defence of the accused that he had delivered two blank cheques to the financier and that he got those two blank cheques returned from the financier and thereafter those two cheques were stolen by his ex-employee D. Shekar, who later delivered one of them to the complainant, who inturn presented the said cheque by filling the blanks, cannot be accepted, as the defence of the accused is not consistent and acceptable. The trial Magistrate having regard to the fact that the accused has admitted his signature on the cheque in question has proceeded to draw presumption under Section 139 of the N.I. Act and has observed that as per Section 139 of the N.I. Act, it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque for the discharge in whole or part of any debt or other liability.

15. From the records of the Trial Court, it is noticed that in the Trial Court the accused did not produce any documentary evidence in support of his contention that the complainant had no financial capacity to lend a sum of Rs.75,000/- on the alleged date of lending. However, during cross-examination of P.W.1, certain answers have been elicited in this regard. Before the Appellate Court, the accused produced certain documents to prove the aforesaid contention. The Appellate Court after hearing the objections of the respondent-complainant allowed the said application by an order and the said order was not questioned. Thereafter, since the complainant-respondent submitted before the Appellate Court that he has no objection to mark those documents and that he does not dispute the contents thereof, those documents were marked by consent and parties did not choose to lead any oral evidence on those documents.

16. Taking into consideration all these additional documents, the Appellate Court proceeded to hold that these documents are of no consequence in the light of the presumption available under Section 139 of the N.I. Act. The Appellate Court also held that in the light of the presumption, it has to be presumed under Section 139 of the N.I. Act, that the cheque in question has been issued for discharge of debt or liability due by the accused to the complainant and since the accused has not rebutted the said presumption, the Appellate Court has confirmed the order of conviction passed by the trial Magistrate.

17. In the light of the above, it is necessary to find out as to what is the position in law about presumption under Section 139 of the N.I. Act and to what extent presumption under Section 139 of the N.I. Act extends.

18. The Hon'ble Supreme Court in the case of Krishna Janardhan Bhat [2008 ALL MR (Cri) 1164 (S.C.)] referred to supra, had an occasion to consider this aspect of the matter. This matter arises out of the judgment of this Court. The brief facts of the said reported decision are;

The appellant therein named Krishna Janardhan Bhat and one R. G. Bhat were jointly running the business in the name and style of Vinaya Enterprises at Hubli and appellant stated to have executed Power of Attorney in favour of the said R. G. Bhat. It was alleged that the appellant handed over the duly attorney four blank cheques for meeting certain expenses of the business. Thereafter, disputes and differences arose between the appellant and R. G. Bhat in connection with running of the said business. Therefore, the Power of Attorney was cancelled. The disputes between them was referred to Panchayath. Thereafter on the premise that the appellant had issued cheque to the respondent therein for Rs.1,50,000/- towards discharge of certain loan and that the said cheque came to be dishonoured when presented for encashment, a complaint was filed. Before the Trial Court, the appellant therein contended that there was no legally enforceable debt or liability and that he has not issued any cheques. However, the trial Judge convicted the accused-appellant. The appeal filed by the accused therein before the Sessions Judge also came to be dismissed. In the revision filed before this Court, the revision petition was partly allowed by reducing the substantial sentence to one week. Thereafter, the matter was carried to the Hon'ble Supreme Court. Before the Hon'ble Supreme Court, it was contended that the Trial Court as well as Appellate Court have misread the provisions of Section 138 of the N.I. Act and it was further contended that presumption under Section 139 of the N.I. Act do not extend regarding the existence of legally enforceable debt or liability, therefore, the order of conviction recorded by the Courts therein was not proper. In paragraphs 16 to 22 of the judgment, the Hon'ble Supreme Court has referred to the manner in which the Courts therein proceeded to determine the case. After referring to the oral evidence of the complainant therein in paragraphs 23 to 25, the Supreme Court in paragraphs 28 to 31 has observed thus;

"28. Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act. Section 13(1) of the Act defines "negotiable instrument" to mean "a promissory note, bill of exchange or cheque payable either to order or to bearer".

29. Section 138 of the Act has three ingredients, viz.:

i) that there is legally enforceable debt:

ii) that the cheque was drawn from the account of Bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt;

iii) that the cheque so issued had been returned due to insufficiency of funds.

30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.

31. The Courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. xxx"

19. Thus from the observations extracted above, it is clear that presumption under Section 139 of the N.I. Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under Section 139 of the N.I. Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt. No doubt as per Section 118(a) of the Act, there is a rebuttable presumption that every negotiable instrument was made or drawn for consideration and when such instrument is accepted, it shall be presumed that it was accepted for consideration. According to clause (b) of Sec.118, there is a presumption that every negotiable instrument bearing a date was made or drawn on such date.

20. Reading of both clauses (a) & (b) of Section 118 together makes it clear that as per the presumption under these clauses, the consideration is supposed to have been received on the date of the cheque. If in a given case from the apparent averment or from the evidence of the drawee of the cheque it can be gathered that on the apparent date of the cheque no consideration was paid or in other words if according to the specific case of the drawee or holder in due course of a cheque, loan was taken on a particular day and for the discharge of the same, on a later date the loanee issued the cheque, the presumption under Section 118(a) stands rebutted. In that event, the drawee of the cheque has to prove as a matter of fact the existence of legally enforceable debt or liability before involving the presumption under Section 139 of the Act, as, the presumption under Section 139 do not extend as to the existence of debt or legally enforceable liability as held by the Hon'ble Supreme Court in Krishna Janardhan Bhat's case [2008 ALL MR (Cri) 1164 (S.C.)] referred to supra. In this reported decision, the Hon'ble Supreme Court has held in para-32 that;

"An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.

In para 31, their Lordships have observed that ;

"The Courts below in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so, he would not be discharging his burden. Such an approach on the part of the Courts, we feel, is not correct."

21. In the light of the above, if from the very averments made in the complaint or from the specific case of the drawee of the cheque, or from other materials on record, it is clear that no consideration was paid on the purported date of the cheque, it would be proper on the part of the Court to hold that the presumption under Section 118(a) of the Act has stood rebutted even if the accused has not entered the witness box.

22. In the above reported decision, the Hon'ble Supreme Court considering various circumstances such as the complainants inability to show his source of income so as to enable him to advance a huge loan; non-production of book of accounts; absence of proof to show that the complainant got so much money from the Bank; absence of any written document evidencing lending of money; absence of any witness to the transaction; non compliance of provisions of Section 269 SS of Income Tax Act which directs that any advance taken by way of any loan of more than Rs.20,000/- should be made only by way of an Account Payee cheque; has set aside the conviction recorded against the accused therein. Before concluding the matter, the Hon'ble Supreme Court has also noticed the difficulty of proving a negative. The relevant observations are found in paragraphs 44 and 45 of the judgment which read thus;

"xxxxx The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasised. It is not suggested that a negative can never be proved but there are cases where such difficulties are faced by the accused e.g. honest and reasonable mistake of fact. In a recent article 'The presumption of Innocence and Reverse Burdens; a Balancing Duty published in 2007 CLJ (March Part) 142 it has been stated:

"In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice-whether the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment."

45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however; shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."

23. In the case on hand also, both the Courts below after holding that the evidence on record shows that the accused has issued the cheque in question, have proceeded to draw presumption under Section 139 of the N.I. Act, even with regard to existence of legally enforceable debt or liability. In the light of the judgment of the Hon'ble Supreme Court referred to above, the reasoning of the Courts below in this case cannot be held as legal and proper. The Courts below have not made any endeavour to find out as to whether or not the presumption under section 118(a) of the Act has stood rebutted and if so, whether the complainant has proved the existence of any legally enforceable debt or liability. Without recording a finding on this aspect of the matter, the Courts below were not justified in drawing presumption under Section 139 of the N.I. Act.

24. Therefore, let me consider the evidence on record to find out as to whether the complainant has proved the existence of legally enforceable debt or liability so as to draw presumption under Section 139 of the Act.

25. According to the case of the complainant, on 20.5.2002, the accused borrowed from him a sum of Rs.75,000/- for improvement of his business and for discharge of that debt on the same day the accused issued the cheque in question but requested him to present the said cheque for encashment on 10.3.2003. Accordingly, when the said cheque was presented on 10.3.2003 the same came to be dishonoured with an endorsement 'payment stopped by the drawer'. The complainant has reiterated these facts in his examination-in-chief by way of affidavit. Except the self-serving statement of the complainant that on the date of lending the money itself, the accused issued the cheque in question, there is no other evidence to substantiate the same. Admittedly the cheque bears the date as 10.3.2003. Therefore, as per clause (b) of Section 118 of the Act, it has to be presumed that the cheque was drawn on 10.3.2003. Admittedly, no consideration was paid by the complainant to the accused on 10.3.2003. In view of this, the statutory presumption under Section 118(a) of the Act has stood rebutted. Therefore, the complainant was under an obligation to prove the existence of the debt by convincing evidence. Even according to the complainant there was no documentary evidence to prove lending of money of Rs.75,000/- to the accused and accused has not executed any document evidencing receipt of money as loan. In the cross-examination, certain suggestions have been put to him to the effect that he does not have annual income of more than Rs.10,000/- from his agricultural land. According to him, he owns 3/4 acre of agricultural land. In addition to the agriculture, he also does milk business. In the further cross-examination, he has admitted that a house has been allotted to him under Ashreya scheme. He has denied the suggestion that he has falsely deposed that he has lent a sum of Rs.75,000/- to the accused. Apart from his oral evidence, the complainant has not placed any other evidence to prove the existence of legally enforceable debt or liability. As noticed above, there is no documentary evidence in proof of lending of Rs.75,000/-.

26. The documents which are marked in the Appellate Court are the certified copies. Ex.D.9 is a certificate issued in Form-F by the Tahsildar, Srirangapatna Taluk. According to the contents of Ex.D.9, the complainant belongs to Madiwal caste coming under Group-II-A and he has annual income of Rs.9,000/-. This certificate is dated 23.2.2002. Ex.D.10 is the copy of the mortgage deed executed by the appellant in favour of the Government in Form-3 drawn under Rajiv Gandhi Rural Housing Scheme. As per the contents of Ex.D.10, the complainant has mortgaged the site allotted to him under Ashreya scheme as security for loan of Rs.10,000/- availed by him for the purpose of construction of the house on the site. Ex.D.11 is the allotment order under Ashreya Housing Scheme issued by Zilla Panchayath, Mandya. According to the contents of Ex.D.11, complainant was allotted house under Ashreya scheme in Koppal village. It is stated in Ex.D.11 that the allottee is a person belonging to below poverty line. According to Ex.D.11, persons whose annual income is less than Rs.11,800/- are entitled for allotment. Exs.D.10 & D.11 are dated 16.3.2002. As noticed earlier, according to the complainant, he lent a sum of Rs.75,000/- to the accused on 20.5.2002. The complainant has not disputed the correctness of Exs.D.9 to D.11. If according to Exs.D.9 to D.11, the annual income of the complainant was hardly Rs.9,000/- and he is a person belonging to below poverty line, it is not explained as to how he could muster his resources to pay Rs.75,000/- as loan to the accused on 20.5.2002. If the annual income of the complainant as on 22.3.2002 was hardly Rs.9,000/- within three months thereafter namely on 20.5.2002 how he could lend a sum of Rs.75,000/- to the accused is not explained. These circumstances, in my considered view, would clearly indicate that the complainant was not in a financial position to lend Rs.75,000/- to the accused as sought to be contended by him.

27. Learned counsel for the complainant contended that in addition to agriculture, the complainant also had income from milk business. Assuming that the complainant was also doing milk business, that cannot be considered as a separate income. The income declared in Ex.D.9 is the income of the complainant from all sources, whether it is agricultural income or income from milk business or from any other avocation. Having got the declaration that his annual income was only Rs.9,000/- as on 20.3.2002, it does not lie in the mouth of the complainant to contend that he had higher income from other sources. He cannot declare lesser income for the purpose of getting the benefit from the Government meant for persons in the category of below Poverty line and later turn around and say that he had Rs.75,000/- to give it as a loan. Therefore, there is no substance in this contention.

28. The complainant has also not established as to when and how he collected this amount of Rs.75,000/- as on 20.5.2002 for lending to the accused. In addition to this, it is also pertinent to note that according to the complainant, he lent Rs.75,000/- on 20.5.2002. The amount was sought to be repaid by the accused on 10.3.2003 as according to the complainant, the accused requested him to present the cheque only on 10.3.2003 nearly about 10 months later. If a substantial amount of Rs.75,000/- had been lent, in the usual course of business transaction it is reasonable to presume that there would be an agreement for payment of interest. Why the complainant should lend a substantial amount of Rs.75,000/- to the accused without charging interest. The complainant in his oral evidence has not stated anything as to why payment of interest was not agreed.

29. In the case of John K. John Vs. Tom Varghese & Another, 2007 AIR SCW 6736 : [2007 ALL MR (Cri) 3283 (S.C.)], the Hon'ble Supreme Court while considering the appeal against an order of acquittal, on a complaint under Section 138 of the N.I. Act has observed that the conduct of the complainant should be that of a prudent man. It has observed in para-10 thus;

"why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed even no interest had been charged."

Thus, the circumstances of not charging any interest was also considered as the relevant circumstance to find out as to whether the existence of the debt has been proved or not. In the case on hand also, not only no document has been executed even, no interest has been charged. No explanation is forthcoming from the complainant as to why interest was not charged on Rs.75,000/- alleged to have been lent by him for a period of nearly 10 months. No prudent man, in my considered view, would lend substantial amount of Rs.75,000/- without charging interest. Admittedly, provisions of Section 269 SS of Income Tax Act has not been followed, as, it is not the case of the complainant that, the loan of Rs.75,000/- was advanced by means of Account Payee cheque.

30. Having regard to the evidence on record, I am of the considered view that the complainant has not established nor proved the existence of legally enforceable debt, against the accused appellant. The Courts below more particularly, the Appellate Court before whom the additional documents were produced has not directed itself in this regard to find out as to whether the complainant has proved the existence of legally enforceable debt. Both the Trial Court and the Appellate Court have mainly proceeded to consider the conduct of the accused. In my considered view, before considering the conduct of the accused to find out as to whether or not he has been able to rebut the statutory presumption available under Section 139, the Courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under Section 139 of the N.I. Act and thereafter find out as to whether or not the accused has rebutted the said presumption.

31. In the light of the discussion made above, I hold that the complainant has utterly failed to prove the existence of legally enforceable debt against the accused. Therefore, the question of drawing presumption under Section 139 of N.I. Act does not arise. In this view of the matter, the Courts below are not justified in recording conviction against the accused under Section 138 of the N.I. Act. In this view of the matter, the revision petition deserves to be allowed and the accused is entitled to be acquitted.

32. Accordingly, the Criminal Revision Petition is allowed. The judgment of conviction and sentence are hereby set aside. The accused is acquitted of the charges levelled against him for the offence punishable under Section 138 of the Act. The complaint filed by the respondent herein is dismissed. The bail and surety bonds of the accused are discharged. The amount stated to have been deposited by the petitioner, before the Trial Court pursuant to the judgment of the Courts below is ordered to be returned to the petitioner herein.

Petition allowed.