IMPORTANT POINT
The presumption of consideration in cheque transactions under the N.I. Act is strong, and the burden lies on the accused to rebut this presumption with credible evidence.

JUDGMENT/ORDER

1. In this revision application, challenge is to the judgment and order dtd. 22/9/2015 passed by learned Additional Sessions Judge, Yavatmal in Criminal Appeal No. 36/2005, whereby learned Additional Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by learned Judicial Magistrate, First Class, Court no.4, Yavatmal by the judgment and order dtd. 16/7/2005, for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act" for short). Learned Magistrate, on conviction, had sentenced the accused to suffer simple imprisonment for six months and to pay compensation of Rs.1, 50, 000.00 (Rupees One lakh Fifty thousand only).

2. Non-applicant no.2 is the original complainant. It is the case of the complainant that the accused had cordial relations with him. The accused was in need of money. On demand of the accused, the complainant paid him Rs.1, 50, 000.00 (Rupees One lakh Fifty thousand only). The accused on the very same day issued him a cheque bearing No. 252747 dtd. 11/5/2004, drawn on his account maintained with State Bank of India, Wani. The complainant presented the said cheque for encashment. The bank of the complainant informed him that the cheque was dishonoured on the ground of "insufficient funds" in the account of the accused to honour the cheque. The complainant thereafter issued a notice to the accused and called upon him to pay the cheque amount. The accused, as per the case of the complainant, neither paid the amount nor replied the notice. Learned Magistrate, on the basis of the material placed on record, took cognizance of the offence and issued process against the accused.

3. The complainant examined himself as sole witness. The accused examined one witness in support of his defence. Learned Magistrate, on consideration of the evidence, found the accused guilty and sentenced him as above. The appeal filed by the accused against the judgment and order of learned Magistrate was dismissed by learned Additional Sessions Judge. The accused has, therefore, approached this Court.

4. I have heard Mr. A. S. Dhore with Mr. Karan Bhende, learned advocates for the applicant/accused, Mrs. M. H. Deshmukh, learned Additional Public Prosecutor for the State and Mr. Ritesh Badhe and Ms. Shrushti Shahakar, learned advocates for non-applicant no.2/complainant. Perused the record and proceedings.

5. Learned advocate for the accused submitted that the accused has adduced sufficient evidence to substantiate his defence that the transaction in question was a money lending transaction. Learned advocate submitted that there is ample evidence to rebut the presumption provided under the N.I. Act. Learned advocate submitted that the trial Court as well the Appellate Court has not properly appreciated the defence of the accused. Learned advocate submitted that the application made by the accused for sending the disputed signature on the cheque for examination to the Handwriting Expert, was not decided by learned Magistrate. Learned advocate submitted that it has resulted in miscarriage of justice. Learned advocate further submitted that the substantive sentence awarded by learned Magistrate was disproportionate to the gravity and seriousness of the proved offence. Learned advocate, therefore, prayed for setting aside that part of the order.

6. Learned advocate for the complainant submitted that the Courts below have properly appreciated the evidence and by doing so recorded concurrent finding of fact in favour of the complainant. Learned advocate submitted that the complainant by leading oral and documentary evidence established the foundational facts to invoke presumption provided under the N.I. Act, against the accused. Learned advocate submitted that the evidence adduced by the accused is not sufficient to rebut the said presumption.

7. It is seen on perusal of the cross-examination of the complainant that consiste