Judgment :- 1. The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.1940 of 2004, against the judgment made in C.A.No.358 of 2003, on the file of Additional Sessions Judge cum Fast Track Court-V, Chennai, confirming the judgment passed in C.C.No.58 of 2000, on the file of the learned II Metropolitan Magistrate, Egmore, Chennai. 2. The respondent / complainant's case is as follows:- The accused, in order to discharge the dues payable to the complainant, had issued a cheque dated 01.04.1999 drawn on State Bank of Hyderabad, Mylapore Branch, for the sum of Rs.6,68,000/- to and in favour of the complainant. When the complainant deposited the said cheque for encashment with his bankers on 15.09.1999, it was returned unpaid on 16.09.1999 with an endorsement "payment stopped by drawer". The complainant sent a lawyer's notice to the accused on 20.09.1999, which was received by the accused on 21.09.1999. In spite of receipt of notice, the accused did not pay the cheque amount. Hence, the complainant had filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the II Metropolitan Magistrate, Egmore, Chennai. 3. On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant's side, four witnesses were examined and nine documents were marked as Exs.P1 to P9, viz., Ex.P1-power of attorney, Ex.P2-cheque, Ex.P3-return memo, Ex.P4-copy of lawyer's notice, Ex.P5-certificate of posting of notice issued by postal authorities, Ex.P6-power of attorney granted to P.W.2, Ex.P7-statement of account of complainant, Ex.P8-power of attorney given to P.W.3 to adduce evidence, Ex.P9-copy of bank account statement of accused. On the side of the accused, no witness, no documents. 4. P.W.1, Seethapathi had adduced evidence that he is the power of attorney holder of the complainant and had marked Ex.P1, the power of attorney given to him by complainant. P.W.1 adduced evidence which is corroborative of the statements made in the complaint and in support of his evidence, he had marked Exs.P1 to P5. 5. P.W.2, Chandrasekar, had adduced evidence that he is the power of attorney holder for the bank, viz., Punjab National Bank, Purusawalkam Branch, wherein he is employed, and had marked Ex.P6, the power of attorney letter. 5. P.W.2, Chandrasekar, had adduced evidence that he is the power of attorney holder for the bank, viz., Punjab National Bank, Purusawalkam Branch, wherein he is employed, and had marked Ex.P6, the power of attorney letter. P.W.2 deposed that the complainant had a savings bank account in their branch in S/B account No.736 and that when the said cheque was deposited in their bank for collection on 16.09.1999, it was returned unpaid with an endorsement of "payment stopped by drawer". In support of his evidence, he had marked the bank account statement of complainant as Ex.P7. 6. P.W.3, Anjaneyalu, the Assistant Manager of State Bank of Hyderabad, Mylapore Branch had adduced evidence that he is the power of attorney holder of his bank and had marked Ex.P8, the power of attorney letter. P.W.3 had deposed that the cheque leaf marked as Ex.P2 had been issued by their bank to the accused and that when the said cheque was presented for collection at their bank on 16.09.1999, it was returned unpaid with an endorsement of "payment stopped by drawer". In support of his evidence, he had marked Ex.P9, the copy of bank account statement of accused, on date of presentation of cheque for collection. 7. P.W.4, Anil agarwal had adduced evidence that he had given the power of attorney to P.W.1 to file the case. P.W.4 in his cross examination had stated that he is working as A.G.M. of caterpillar company and that P.W.1 is known to him for 12 years. He deposed that the accused is his father's friend and had stated that he had not lent any money to the accused and that only his father lent him the money. He stated that the accused had given him the said cheque for his admitted liability after the death of his father on 14.09.1997. He further stated that the pronote was given to him by the accused after death of his father. 8. It was argued on the side of the accused that the accused had issued the said cheque to the complainant's father and that even after making full payment of loan received, the complainant's father had not returned the cheque and had instead handed it over to the power of attorney holder to foist a false case against the accused. 8. It was argued on the side of the accused that the accused had issued the said cheque to the complainant's father and that even after making full payment of loan received, the complainant's father had not returned the cheque and had instead handed it over to the power of attorney holder to foist a false case against the accused. It was also contended that no reasons had been adduced as to why the complainant had filed the complaint through his power of attorney holder viz., Seethapathi instead of filing it himself. However, the learned Magistrate on considering that the complainant himself had adduced evidence as P.W.4 and had deposed that he had given the power of attorney to P.W.1 to contest the case and on considering that the accused had not denied execution of the cheque marked as Ex.P2 and on opining that the accused had purposely given "stop payment" advice to his bankers to evade payment of cheque amount as there were insufficient funds in his account as per Ex.P9, held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced the accused to undergo simple imprisonment for six months and imposed a fine of Rs.5,000/- in default of payment of fine, the accused was to undergo further period of simple imprisonment for three months. 9. Aggrieved by the conviction and sentence imposed by the trial Court, the accused has preferred an appeal in C.A.No.358 of 2003 before the Additional Sessions Judge cum Fast Track Court-V, Chennai. It was contended on the side of the appellant that the contradictions in the evidence of P.W.1 and P.W.4 were not considered by the trial Court and that the complainant had not proved that the said cheque had been issued for a legally enforceable debt. It was pointed out that P.W.4 had admitted that he had not lent any money to the accused and that the cheque was issued for his admitted liability of money that was lent by P.W.4's father. 10. The learned judge on scrutiny of evidence of P.W.4 opined that the complainant's father had lent money to the accused and that subsequent to the death of his father, the accused had issued the said cheque (Ex.P2) in the complainant's favour. Hence, the learned judge held that the cheque was issued for a legally enforceable debt. 10. The learned judge on scrutiny of evidence of P.W.4 opined that the complainant's father had lent money to the accused and that subsequent to the death of his father, the accused had issued the said cheque (Ex.P2) in the complainant's favour. Hence, the learned judge held that the cheque was issued for a legally enforceable debt. It was contended on the side of the accused that the debt was time barred. It is however seen that the accused had not proved specifically as to when he borrowed the amount and how it was time barred. The learned judge also observed that the accused had not examined himself as a witness to let in rebuttal evidence. Hence, the learned judge, on considering the oral and documentary evidence, dismissed the appeal and confirmed the conviction and sentence imposed by the trial Court. 11. Aggrieved by the dismissal of his appeal, the appellant / accused has preferred the present revision. 12. The learned counsel for the revision petitioner has contended in his revision that the P.W.4 has categorically admitted in the course of cross-examination that he has not lent money to the accused and had stated that his father had lent money to the accused and this cheque was issued for admitted liability and the accused had not availed any financial assistance from him. It was pointed out that P.W.4 had clearly deposed that he had not mentioned that the loan was received by the accused from the complainant's father and had also deposed that he does not know whether the amount in the cheque is for the principal or interest. It was also pointed out that P.W.4 had deposed that the pronote was given to him by the accused after the death of his father. It was pointed out that if the pronote in favour of P.W.4's father was given by the accused after the death of his father, the said pronote is not valid in law and therefore, there is no legally enforceable debt or liability upon the said pronote. 13. The learned counsel for the revision petitioner had submitted written submission, in which it is stated that the case of the petitioner was that there was no liability between him and the respondent. 13. The learned counsel for the revision petitioner had submitted written submission, in which it is stated that the case of the petitioner was that there was no liability between him and the respondent. The respondent who was examined as P.W.4 admitted in the course of cross-examination that he did not lend any money and that the cheque was issued for the admitted liability of the petitioner for the money lent by P.W.4's deceased father and hence the cheque cannot be construed to have been issued for the legally enforceable liability between the respondent and the petitioner. He further submitted that the subordinate Courts failed to consider that the respondent (P.W.4) in the course of cross-examination has let down the prosecution case and has given a different version about the liability. The respondent (P.W.4) has categorically admitted in the cross-examination that he has not lent money to the petitioner (S.V.Parasuraman). It was submitted that his father lent money to the petitioner (S.V.Parasuraman) and this cheque was issued for the said liability. The respondent (P.W.4) admitted that he read the complaint and the complaint does not disclose about the money borrowed from his father. The respondent (P.W.4) further admitted that he does not know whether the amount in the cheque is for the principal or interest. The respondent admitted that he does not know whether the loan is barred by limitation. He further admitted that he does not know whether P.W.1 has deposed that his (P.W.4) father gave the loan. The respondent has further said that the pronote was given to him by the petitioner; after the death of his father. As such, it is seen that the evidence therefore discloses that the cheque was not issued towards a legally enforceable debt or liability. Thus the petitioner (accused) has let in rebuttal evidence as required under Section 139 of Negotiable Instruments Act and has discharged the initial onus of proof. 14. As such, it is seen that the evidence therefore discloses that the cheque was not issued towards a legally enforceable debt or liability. Thus the petitioner (accused) has let in rebuttal evidence as required under Section 139 of Negotiable Instruments Act and has discharged the initial onus of proof. 14. The learned counsel for the revision petitioner has cited the following judgment in support of his contentions:- M.S.Narayana Menon v. State of Kearala reported in (2006) 6 Supreme Court Cases 39 "A. Negotiable Instruments Act, 1881 – Ss.118(a) and 138 and 139 – Presumption under, that Negotiable instruments was drawn for "consideration" – Held, Court has to presume a Negotiable instrument to be for consideration unless the existence of consideration is disproved – That is unless on consideration of matter before it the Court either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist – Meaning of words "proved" and "disproved" as defined under the Evidence Act, applied in this regard – Evidence Act, 1872, Ss.4, 3 & 114 III (C) – Words and phrases – "proved", "disproved". 15. The learned counsel for the complainant submitted that the only issue raised by the accused to justify the dishonour of cheque was that it was not supported by consideration as the issuance of cheque was not for the discharge of his liability to the complainant but that of his father. When the liability of the accused towards the complainant's father has not been disputed and as such the accused is liable to be punished for an offence as per Section 139 of Negotiable Instruments Act. The learned counsel further submitted that any cheque drawn by a person on an account maintained by him with a bank for payment of any amount of money to any person from out of that account for discharge in whole or in part of any debt or other legally enforceable debt comes under the provisions laid down for an offence under Section 138 of Negotiable Instruments Act. The learned counsel further submitted that the accused had not disputed his legally enforceable debt to the father of the complainant and he has drawn the cheque in favour of the complainant voluntarily in discharge of his legally enforceable debt due to his father. It would be other liability, in terms of Section 138 and 139 of Negotiable Instruments Act. Supporting his contentions, the learned counsel has cited the following judgment:- Devendra Kumar Raj v. Ram Gopal Rai reported in 1999 CRI.L.J.1349, "(A) Negotiable Instruments Act (26 of 1881), S.138 proviso – Dishonour of cheque – Liability of drawer of cheque to face prosecution – Starts with non-payment within 15 days of notice – Stipulation of longer period for repayment, in notice – Is not material. (B) Negotiable Instruments Act (26 of 1881), S.138-Scope-It is not necessary that the cheque should be issued to person to whom debt is due – Dishonour of cheque, issued in favour of son to discharge debt due to his father – Is covered by S.138. (C) Criminal P.C. (2 of 1974), S.482 – Negotiable Instrument Act (26 of 1881), S.138 – proviso – Prosecution for dishonour of cheque – Quashing of – Question as to whether accused had really issued cheque or not – Is question of fact – Has to be determined by trial Court." 16. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and on perusing the impugned judgments of the Courts below, this Court does not find any discrepancy in the conclusions arrived at for convicting the accused. However, the sentence of simple imprisonment for six months imposed on the accused is on the higher side. Therefore, this Court reduces the sentence from six month imprisonment to two months simple imprisonment, as it is found to be appropriate in the instant case. However, the complainant had proved his case against the accused. Therefore, he is entitled to receive compensation from the accused. As such, this Court directs the accused to pay compensation of a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as it is found to be appropriate. The accused has to either pay the said compensation amount or to undergo two months simple imprisonment. Therefore, he is entitled to receive compensation from the accused. As such, this Court directs the accused to pay compensation of a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as it is found to be appropriate. The accused has to either pay the said compensation amount or to undergo two months simple imprisonment. This Court directs the learned II Metropolitan Magistrate, Egmore, Chennai, to issue bailable warrant and secure the accused into judicial custody forthwith, in order to undergo two months simple imprisonment. If the accused remits the said compensation amount of a sum of Rs.2,00,000/-into the credit of C.C.No.58 of 2000, on the file of the learned II Metropolitan Magistrate, Egmore, Chennai, before being remanded into judicial custody, the accused would be set at liberty and the sentence of simple imprisonment for two months imposed on the accused would not be operated upon any further. If the accused deposits the said amount, it is open to the complainant to withdraw the same after filing a Memo before the trial Court. If the accused pays the compensation amount, the fine amount of a sum of Rs.5,000/-is to be refunded to him. This order has been passed by this Court after invoking the discretionary power vested with it. 17. Resultantly, the above revision is partly allowed with the above modifications. Consequently, the conviction and judgment passed in C.A.No.358 of 2003, on the file of the Additional Sessions Judge cum Fast Track Court-V, Chennai, dated 22.11.2004, confirming the judgment made in C.C.No.58 of 2000, on the file of the learned II Metropolitan Magistrate, Egmore, Chennai dated 20.10.2003 is modified. Accordingly ordered.