IMPORTANT POINT
The presumption of consideration and liability under Sections 118 and 139 of the N.I. Act is a significant legal principle, which places the burden on the accused to rebut these presumptions in cases of dishonored cheques.

JUDGMENT/ORDER

1. Heard.

2. In this revision application, challenge is to the judgment and order dtd. 4/1/2019, passed by the learned Additional Sessions Judge, Akola, whereby the learned Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by the learned Judicial Magistrate First Class, Akola for the offence punishable under Sec. 138 of the Negotiable Instrument Act, 1881 (For short 'the N. I. Act'). Learned Magistrate on conviction had sentenced the applicant/ accused to pay fine of Rs.95, 000.00 and in default of payment of fine to suffer simple imprisonment for three months.

3. The facts are as follows: In this judgment, the parties would be referred by their nomenclature in the complaint. The applicant is the accused and the non-applicant No.1 is the complainant. It is the case of the complainant that on account of his cordial relations with the accused he gave hand loan of Rs.60, 000.00 to the accused. The accused, at that time, issued a cheque bearing No. 506362 dtd. 10/7/2009 of Rs.60, 000.00 drawn on his account maintained with Bank of Baroda, Branch Akola. Despite demand the accused did not repay the loan amount. Complainant, therefore, presented the cheque for encashment. The complainant received the intimation from his banker that the cheque was dishonored on the ground of insufficient funds in the account of accused. The complainant, therefore, issued the notice dtd. 31/12/2009 through his Advocate. The notice was duly served to the accused. The accused neither paid the cheque amount nor replied the notice. Therefore, the Complaint was filed by the complainant. Learned Magistrate took the cognizance of an offence under Sec. 138 of the N. I. Act and issued the process.

4. The complainant examined himself and one more witness to support his case. Learned Magistrate on taking the evidence into consideration held the accused guilty and sentenced him, as above. The appeal filed by the accused in the Sessions Court, Akola was dismissed. The accused is therefore before this Court.

5. I have heard the learned Advocate Mr Girish Dipwani for the accused/applicant and learned APP Ms Mayuri Deshmukh for the State. Record shows that Advocate by name Kartik Rao appeared on behalf of the complainant. However, he did not file his power. Learned Advocate for the complainant is absent today. With the assistance of the learned Advocate for the accused and the learned APP, I have gone through the record and proceedings.

6. Learned Advocate for the accused submitted that the accused has deposited the fine amount of Rs.95, 000.00, as ordered by the Courts below. Learned Advocate besides, submitted that the complainant has failed to prove the basic ingredients of Sec. 138 of the N. I. Act. Learned Advocate submitted that on the basis of the evidence adduced by the complainant foundational fact was not proved to invoke the presumption against the accused provided under Ss. 118 and 139 of the N. I. Act against the accused. Learned Advocate further submitted that the material on record is sufficient to rebut the presumption sought to be invoked against the accused.

7. Learned APP submitted that the Courts below have recorded concurrent findings of fact. In the submission of learned APP the available evidence on record is sufficient to prove the basic ingredients of Sec. 138 of the N. I. Act. Learned APP pointed out that the accused has admitted the receipt of notice, but he failed to reply the said notice or to pay the amount of cheque. Learned APP further submitted that the case was made out by the complainant to attract the presumption provided under the law against the accused. Learned APP submitted that no interference is warranted in the concurrent findings of fact recorded by the Courts below.

8. The complainant has examined himself as well as one more witness. Witness No. 2 was examined by the complainant to substantiate his claim. The accused has admitted the issuance of cheque. He