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TMI Blog2015 (6) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... ed guilty under Section 138 of the Negotiable Instruments Act and sentenced the first accused to pay a fine of Rs. 1,000/ -, in default, to attach the properties of A1 and sentenced the accused 2 and 3 to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/ -, in default, to undergo simple imprisonment for one month. Challenging the said conviction and sentence, the appellants filed appeal in CA No. 24 of 2012. By judgment dated 26.06.2013, the III Additional District and Sessions Judge, Trichy, dismissed the appeal thereby confirming the conviction and sentence imposed by the trial Court. As against the same, the petitioners are before this Court with this revision. ( 2. ) The case of the respondent is as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case, on the side of the complainant, the complainant was examined as P.W.1 and as many as six documents were exhibited. Ex.P1 is the promissory note and Ex.P2 is the cheque in question. Ex.P3 is the bank advice memo and Ex.P4 is the legal notice issued and Ex.P6 is the reply notice. When the above incriminating materials were put to the accused, they denied the same as false. On their side, the third accused was examined as D.W.1, wherein, he has stated that he had business transaction with one Mr. Rajaraman from whom he borrowed a sum of Rs. 3 lakhs and as a security, he had handed over the cheque in question, which was then blank, but signed by the accused 2 and 3 and also a blank promissory note, but signed by the 2nd accused and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and D4, it has been clearly established by the accused that the cheque in question was not at all issued to the complainant and as a matter of fact, it was issued only to Mr. Rajaraman. He would further submit that it was not duly executed, which was given only as a blank cheque. The learned counsel would further submit that so far as the promissory note is concerned, that was also given as a blank promissory note, but signed by A2 and A3 to Mr. Rajaraman. The learned counsel would submit that the exchange of notices between the accused 2 and 3 and Mr. Rajaraman was much prior to the presentation of the cheque in question. He would submit that the cheque in question is now dated as 10.04.2007, which was presented for collection on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque in question and the promissory note were issued to him. The learned counsel would further submit that P.W.1's evidence would clearly go to show that the cheque was issued only to the complainant. He would further submit that the execution of the promissory note has also been proved by examining P.W.1. Thus, according to him, the legally enforceable debt, which is required under Section 138 of the Act, has been clearly proved. The learned counsel would further submit that it is only an afterthought of the accused to take such defence that the cheque was not issued and the promissory note was not executed in favour of the complainant. The learned counsel would further submit that the non examination of Mr. Muthu and the contrad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.1 has stated that he does not know whether the promissory note was scribed either by one Muthu or by his son. Therefore, it is not possible for the accused to get any expert opinion as to whether the documents was scribed by Muthu or his son. Had it been true that the promissory note was really executed on 01.08.2004 and loan was paid under the said promissory note, certainly, P.W.1 could have been in a position to say, as to how, where, and when it was executed and who scribed the said document. This creates enormous doubt in the case of the complainant. ( 7. ) Nextly , in order to prove the original debt, which forms part of the original cause of action and for the entire lis, it is for the complainant to prove the execution of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not proved and the payment of loan is not proved, then the entire case of the complainant should collapse. I am in full agreement with the same. ( 8. ) Mere issuance of the cheque without there being any legally enforceable debt or liability would not make out any offence under Section 138 of the Act, even though the cheque is dishonoured for want of sufficient funds. In this case, the complainant has failed to prove that the cheque in question was issued as against any legally enforceable debt. Now, turning to the other argument of the learned counsel for the petitioners, i.e. the transaction between Mr. Rajaraman and the accused, Exs.D1 to D4 would go to show that the exchange of notices and the same commenced in the year 2005 and ende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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