IMPORTANT POINT
The presumption of consideration and debt under Sec. 118 and 139 of the N.I. Act places the burden on the accused to disprove the existence of a debt once the cheque is admitted, and the complainant's financial capacity need not be established unless specifically challenged.

JUDGMENT/ORDER

1. Heard.

2. Rule, Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties.

3. In this revision application, challenge is to the judgment and order, dtd. 5/2/2020, passed by the learned Additional Sessions Judge, Akola, whereby the learned Sessions Judge dismissed the appeal filed by the applicant/accused against the judgment and order of his conviction and sentence for the offence punishable under Sec. 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as "the N. I. Act") passed by the learned Judicial Magistrate First Class, Akola. Learned Magistrate by his order dtd. 4/8/2018 had convicted the applicant/accused and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.4, 60, 000.00 and in default of payment of fine to further suffer simple imprisonment for four months.

4. The facts relevant for deciding this application may be stated as follows: The applicant is the original accused. The non-applicant No.2 is the complainant. In this judgment, parties would be referred by their nomenclature in the complaint. It is the case of the complainant that her family and family of the accused are well acquainted with each other. They had cordial relations. The accused was in a need of money for his business purpose. The accused, therefore, demanded a sum of Rs.2, 50, 000.00 from her husband. Her husband was not having sufficient amount, therefore, the accused demanded the amount from the complainant. Considering the need and their relations with the accused she advanced hand loan of Rs.2, 50, 000.00 to the accused. The accused agreed to return the same. On demand of the money the accused, instead of making payment, issued a cheque bearing No. 524459 to her drawn on his account maintained with the Akola Janta Commercial Co-operative Bank Ltd., Branch Gorakshan Road, Akola on 17/9/2004. The complainant presented the cheque through her bank for encashment. The bank informed her that the cheque could not be encashed because the drawer had stopped the payment. On 23/9/2004, the complainant issued a notice through her Advocate to the accused and called upon the accused to pay the cheque amount within 15 days from the receipt of the notice. The accused received the notice but he failed to pay the cheque amount. The complainant, therefore, filed the complaint in the Court of Magistrate. Learned Magistrate took cognizance and issued process against the accused.

5. In the trial, the complainant examined herself as CW-1. She has also examined her husband as CW-2. The accused has examined himself in support of his defence. Learned Magistrate on consideration of the evidence and the material on record found the accused guilty and accordingly, sentenced him as above. The appeal filed against the conviction and sentence was dismissed by the learned Sessions Judge. The accused is, therefore, before this Court in revision.

6. I have heard Mr A. R. Deshpande, learned Advocate for the accused and Mr R.P. Joshi, learned Advocate for the complainant. Perused the record and proceedings.

7. Learned Advocate for the accused submitted that the complainant has miserably failed to prove basic ingredients of Sec. 138 of the N. I. Act. Learned Advocate pointed out that the complainant has admitted that she is housewife. It is therefore submitted that she had no source of income and therefore, there was no question of payment of Rs.2, 50, 000.00 to the accused by her. Learned Advocate submitted that, therefore, in this case the complainant has failed to disclose the source of the money or the availability of the cash with her on the given date. Learned Advocate further submitted that as per the provisions of the Income Tax Act, 1961 the payment of Rs.20, 000.00 can only be made in cash. Learned Advocate submitted that therefore the payment of the amount of Rs.2, 50, 000.00 if proved would be contrary to the provisions of the Income Tax Act, 1961. Learned Advocate sub