IMPORTANT POINT
The court confirmed that the burden of proof shifts to the accused to rebut the statutory presumptions once the complainant establishes a prima facie case under the N.I. Act.

ORDER :

V. Srinivas, J.

Assailing the judgment, dated 04.01.2007 in Crl.A.No.37of 2004 on the file of the Court of learned V Additional District & Sessions Judge (FTC), Ongole, confirming the conviction and sentence imposed by the judgment, dated 23.02.2004 in C.C.No.452 of 2003 on the file of the Court of learned II Additional Judicial Magistrate of First Class, Ongole, for the offence under section 138 read with 142 of the Negotiable Instruments Act (hereinafter referred to as “N.I.Act”), the petitioner/accused filed the present criminal revision case under Section 397 read with 401 of the Criminal Procedure Code, 1973.

2. For the sake of convenience, the parties hereinafter are referred as they arrayed before the trial Court.

3. The revision case was admitted on 28.03.2007 and the sentence of imprisonment imposed against the accused was suspended, vide orders in Crl.R.C.M.P.No.629 of 2007.

4. The factual matrix of the case is that :

(i). On 01.09.2001, the petitioner/accused borrowed an amount of Rs.80,000/- from the complainant and executed a pronote, agreeing to repay the debt together with interest at the rate of 24% p.a. Thereafter, when the complainant approached the accused to discharge the debt, he issued three cheques viz., on 20.01.2003 for Rs.40,000/-, 20.02.2003 for Rs.24,000/- and 20.03.2003 for Rs.30,000/- towards part satisfaction of debt. When the complainant presented the cheque, dated 20.01.2003 in Federal Bank, Ongole, for encashment on 17.06.2003, it was returned with memo issued by Union Bank of India, Ongole, to which it was sent for clearance, with an endorsement "insufficient funds" in account of accused. When the complainant informed about the same to accused, he requested to present the other two cheques on 27.06.2003 promising that he would arrange funds in this account by that date. Accordingly, on 27.06.2003, when the complainant presented the said two cheques, they were also returned due to "insufficient funds".

(ii). The complainant got issued a notice to the accused, but the accused evaded the same. Hence, the complainant filed a private complaint against the accused for the offence under Section 138 read with 142 of the Negotiable Instrument Act.

5. The complaint was taken on file and numbered as C.C.No.452 of 2003 on the file of the Court of learned II Additional Judicial Magistrate of First Class, Ongole and after full-fledged trial, found the accused guilty of the offence under Section 138 read with 34 of the N.I.Act and sentenced him to undergo Simple Imprisonment of a period of two(2) yearsand to pay Rs.1,00,000/- towards compensation to the complainant under Section 357 Cr.P.C., i.d.s.i., for three months for the offence punishable under Section 138 read with 148 of the N.I.Act.

6. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.37 of 2004, before the Court of learned V Additional District & Sessions Judge (FTC), Ongole, and the same was dismissed, vide judgment, dated 04.01.2007, by confirming the conviction and sentence passed by the trial Court.

7. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.

8. Heard Sri N. Ravi Prasad, learned counsel for the petitioner/accused and Sri S. Dheera Kanishk, learned Special Assistant Public Prosecutor for Respondent No.1/State.

9. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?”

10. Sri N. Ravi Prasad, learned counsel for the petitioner/accused submits that the complainant failed to prove the ingredients to constitute the offence as alleged against the petitioner; that the complainant failed to explain about Ex.D1 to D3 and the petitioner has established the probabilities of the circumstances under which Ex.P2 to P4 cheques and Ex.P1 promissory note came into existence. Section 25