IMPORTANT POINT
The presumption of a debt under Sec. 139 of the N.I. Act is a significant legal principle, which places the burden on the accused to prove the contrary when a cheque is dishonored.

JUDGMENT/ORDER

1. In this criminal revision application, challenge is to the judgment and order dtd. 12/10/2011 passed by the learned Adhoc Additional Sessions Judge, Gondia, whereby the learned Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by the learned Judicial Magistrate First Class, Gondia for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short " the N.I.Act"). The learned Judicial Magistrate First Class, Gondia by order dtd. 31/8/2009 on conviction had sentenced the applicant/accused to suffer rigorous imprisonment for three months and to pay fine of Rs.1, 000.00 and also directed him to pay the compensation of Rs.1, 60, 000.00 to the complainant.

2. The facts are as follows:-

The parties in this judgment would be referred by their nomenclature in the complaint. The applicant is the accused and non-applicant No.1 is the complainant. It is the case of the complainant that he and accused both were doing business of grains. The complainant is doing his business under the name and style of 'Anand Bhandar'. The accused at the relevant time was doing the business under the name and style as 'Prabhakar Trading'. On the request of accused the complainant supplied the rice to accused worth Rs.4, 38, 385..00

As agreed between them, accused was to make payment on receipt of goods. The accused did not pay the money despite receipt of the rice. The accused after great persuasion made a part payment. The accused issued the cheque bearing No.895005 for Rs.1, 60, 000.00 drawn on his account maintained with Nagpur Nagrik Sahakari Bank Ltd. Branch at Dharampeth, Nagpur. The complainant on presentation of the cheque was informed by his banker that the cheque was dishonoured on the ground of insufficient funds in the account of accused. The complainant issued a notice dtd. 4/2/2002 to accused and called upon him to pay the amount of cheque. The notice was duly served upon accused. The accused neither replied the notice nor paid the amount. In the complaint filed by the complainant learned Magistrate took the cognizance and issued the process.

3. The complainant examined himself and one witness. He relied on number of documents. The accused has examined himself and one independent witness. Learned Magistrate on consideration of the evidence found the accused guilty and sentenced him as above. The appeal filed against his conviction and sentence was dismissed by the learned Adhoc Additional Sessions Judge. The accused is therefore, before this Court.

4. I have heard Shri N.S. Khandewale, learned Advocate for the applicant, Shri S.N. Tapadia, learned Advocate for the non-applicant No.1/complainant and Smt. Mayuri Deshmukh, learned APP for State. Perused the record and proceedings.

5. Learned Advocate for the accused submitted that the complainant has failed to establish the basic ingredients of Sec. 138 of the N.I.Act. Learned Advocate submitted that demand notice was not duly served to the accused and therefore, there was no cause of action for filing the complaint. Learned Advocate pointed out that the cheque obtained by force from the accused was misused by the complainant. Learned Advocate submitted that this defence has been fully established by leading cogent evidence by the accused. Learned Advocate submitted that presumption invoked against the accused under Sec. 139 of the N.I.Act was fully rebutted by the accused.

6. Learned Advocate for the complainant submitted that the Courts below have recorded concurrent findings of fact against the accused. In the submission of learned Advocate for the complainant the Courts below have not committed any error or mistake while arriving at a finding in favour of the complainant and therefore, in exercise of revisional jurisdiction, the interference is not warranted in the concurrent findings of fact. Learned Advocate pointed out that the notice sent to the accused by RPAD was returned back with postal endorseme