IMPORTANT POINT
The presumption of consideration in cheque transactions under Sections 118 and 139 of the N.I. Act places the burden on the accused to prove otherwise, and the courts have discretion in sentencing based on the specifics of each case.

JUDGMENT/ORDER

1. Heard.

2. In this revision application, challenge is to the judgment and order dtd. 8/6/2017 passed by the learned Additional Sessions Judge-3, Amravati, whereby the learned Additional Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by the learned Judicial Magistrate, First Class, Court No.3, Amravati for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I.Act"). Learned Judicial Magistrate First Class, Court No.3, Amravati on conviction had sentenced the accused to suffer rigorous imprisonment for one month and to pay compensation of Rs.30, 000.00 to the complainant.

3. The non-applicant is the original complainant. It is the case of the complainant that he had cordial relations with the accused. The accused demanded Rs.28, 000.00 from him. The complainant paid the said amount to the accused. The accused issued a cheque bearing No.024257 of Rs.28, 000.00 drawn on his account maintained with U.T.I. Bank Limited. On presentation, the cheque was dishonoured for the reason "account closed". The complainant issued notice dtd. 15/12/2008 to the accused. Despite receipt of the notice, the accused neither paid the amount nor replied the said notice.

4. In the complaint filed by the complainant, learned Magistrate took the cognizance and issued the process. The complainant adduced the oral and documentary evidence. Learned Magistrate on consideration of the evidence convicted and sentenced the accused as above. The appeal filed against the said conviction was dismissed by the learned Additional Sessions Judge, Amravati. The accused is therefore, before this Court in revision.

5. I have heard Shri G.I. Dipwani, learned Advocate for the accused. The complainant despite service of notice failed to appear before this Court. Perused the record and proceedings.

6. Learned Advocate for the accused submitted that the complainant has failed to prove the basic ingredients of Sec. 138 of the N.I.Act. Learned Advocate submitted that there is ample material on record to rebut the presumption invoked against the accused. Learned Advocate submitted that the Courts below have not properly appreciated the evidence and came to a wrong conclusion. Learned Advocate further submitted that the learned Magistrate has awarded compensation of Rs.30, 000.00 whereas the cheque was for Rs.28, 000.00. Learned Advocate pointed out that the accused has deposited the compensation of Rs.30, 000.00. Learned Advocate submitted that considering the nature of transaction the substantive sentence of one month was disproportionate to the gravity of the proved offence. Learned Advocate submitted that conviction and sentence is required to be set aside.

7. The complainant has deposed that the accused was in need of Rs.28, 000.00 and therefore, considering his cordial relations with the accused, he paid the same to the accused on 15/4/2008. The accused issued the cheque on 15/9/2008 for Rs.28, 000.00 to the complainant. It is at Exh.54. The complainant has stated that he was having money lending license. The license is at Exh.53. The complainant has stated that at the time of payment of money, the accused had executed a promissory note. Promissory note is at Exh. 52. It is the defence of the accused that he had borrowed Rs.5, 000.00 from the complainant in the year 2007. The complainant has denied the suggestion put to him in his cross-examination on this point. The promissory note is at Exh.52. It corroborates the oral evidence of the complainant. The notice issued on dishonour of cheque is dtd. 15/10/2008. It is at Exh.57. The notice was sent by R.P.A.D. at the address of the accused. The RPAD envelop was returned back. The notice was also sent by UCP. UCP Postal Receipt is at Exh.59. R.P.A.D. envelop is at Exh.60. On the basis of the evidence the complainant has proved the service of notice. The accused neither replied the notice nor paid the