IMPORTANT POINT
The presumption of consideration and the presumption of receipt of a cheque for discharging a debt under Sec. 118 and 139 of the N.I. Act are pivotal in establishing liability in cheque dishonor cases.

JUDGMENT/ORDER

1. In this revision application, challenge is to the judgment and order dtd. 5/5/2017 passed by the learned Additional Sessions Judge-3, Nagpur, whereby the learned Additional Sessions Judge-3 dismissed the appeal filed by the applicant-accused, confirming his sentence for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act').

2. The learned Judicial Magistrate, First Class, Nagpur, on conviction, had sentenced the accused to suffer simple imprisonment for six months and to pay compensation of Rs.1, 00, 000.00.

3. Heard the learned advocates for the applicant and the non-applicant.

4. Learned advocate for the non-applicant (original complainant) would submit that this court can set aside the order with regard to the substantive sentence. Learned advocate, however, would submit that the amount of compensation of Rs.1, 10, 000.00 deposited by the applicant in this Court may be ordered to be paid to the original complainant.

5. In my view, the submission is fair and reasonable. This revision application can be disposed of on merits by keeping in mind the submissions of the learned advocate for the original complainant.

6. The complainant and the accused are acquainted with each other. It is the case of the complainant that the accused was in need of money. Therefore, on demand of the accused, the complainant paid Rs.2, 00, 000.00 to the accused. The accused had assured to repay the same. The accused had issued him 14 cheques by way of security. Out of 14 cheques, two cheques were dishonoured. The cheque bearing no.071488 was for Rs.50, 000.00 and cheque bearing no.009175 was for Rs.25, 000.00. On receipt of intimation of dishonour with endorsement "exceeds arrangement', the complainant issued a notice to the accused on 25/11/2003. The accused, despite receipt of the notice, did not pay the amount. The learned Magistrate, on filing the complaint, took cognizance and issued the process.

7. The learned Magistrate, on consideration of the evidence adduced by the complainant, has convicted and sentenced the accused as above. The appeal filed by the applicant-accused against his conviction and sentence was dismissed. The accused is, therefore, before this Court.

8. I have gone through the record and proceedings. The cheques are at Exh.17 and 18. Exh.19 and 20 are the cheque return memos sent by the bank to the complainant. The reason mentioned for dishonour of cheques is 'exceeds arrangement'. The accused has admitted receipt of the notice at Exh.21. The complainant, on the basis of oral as well as documentary evidence, proved the basic ingredients of Sec. 138 of the N.I. Act. The question is, whether the evidence was sufficient to establish the foundational facts to invoke the presumption provided under Ss. 118 and 139 of the N.I. Act against the accused. The Courts below have recorded the concurrent findings of fact. On the basis of evidence, the complainant has established the foundational facts to invoke the presumption against the accused.

9. In the backdrop of the above evidence, it is necessary to see whether the case in question is a fit case to invoke the presumption under Sec. 118 and 139 of the N. I. Act. As per Sec. 118 of the N. I. Act, until the contrary is proved, the Court has to presume that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The presumption is also there with regard to its date and time of acceptance. Sec. 139 provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. The complainant has adduced sufficient evidence to prove the basic ingredients of Sec. 138 of the N. I. Act. He has proved the issuance of cheque by the accused. He has proved actual na