The burden of proof under Section 139 of the N.I. Act is on the accused to prove the contrary to the satisfaction of a prudent mind, and the presumption does not shift the burden to prove execution and issue of the cheque.

When can the burden on an accused under Section 139 of the N.I. Act be said to be discharged? What is the nature of the burden on a complainant and an accused in a prosecution under Section 138 of the N.I. Act? Is the decision of the 3-Judge Bench of the Supreme Court in Hiten P. Dalal v. Bratindranath Banerjee (2001 (6) SCC 16) in any way altered or changed by the subsequent decision of the Supreme Court in Narayana Menon v. State of Kerala (2006(3) KLT 404 (SC))? These are the interesting questions that arise for consideration in this revision petition.

2. The complainant alleged that Ext.P1 cheque for Rs. 1,96,750/- was issued to him by the petitioner for the discharge of a liability arising in a loan transaction. In the complaint or in the notice, he did not plead the details. He only averred that the cheque was issued by the accused for the discharge of a liability, which he owed to the complainant. The cheque when presented was dishonoured on the ground of insufficiency of funds. Notice of demand was duly despatched, received and acknowledged. It did not evoke any response. Of course later, long after the commencement of the prosecution, Ext. D1 notice was allegedly issued by the accused inter alia to the complainant also. The complainant after scrupulously observing the statutory time table came to court with the present complaint under Section 138 of the N.I. Act.

3. The complainant examined himself as PW1 and proved Exts. P1 to P7. Though the notice of demand did not evoke any response, the accused in the course of cross examination of the complainant advanced a contention that as a matter of fact only an amount of Rs. 75,000/- was borrowed by the petitioner from the complainant and there was no transaction to discharge which the cheque for an amount of Rs. 1,96,750/- could have been issued on 31-08-2002. Of course one cannot afford not to take note of the incongruity in the stand taken by the petitioner in the cross examination of PW1. When the complainant was cross examined initially the specific contention was that an amount of Rs. 75,000/- was borrowed and 3 cheques were issued by the accused to the complainant. But later when the complainant was recalled and further cross examined, a different stand was taken. The petitioner sticks to that later stand in this revision petition.

4. According to the accused, only an amount of Rs. 75,000/- was received as loan. Interest was being paid promptly. The complainant demanded return of the principal amount. The accused had no money to discharge the liability. The accused was hence taken by the complainant to one Jose Paul who agreed to advance an amount of Rs. 75,000/-. That amount was availed from Jose Paul and the liability to the complainant was discharged. Jose Paul insisted that the petitioner must hand over 3 blank signed cheques. Accordingly, the petitioner was constrained to handover 3 signed blank cheques to Jose Paul. Later when those blank cheques were demanded, the complainant insisted that more amount must be paid to him. The complainant obtained one signed blank cheque leaf from the said Jose Paul. He is misutilising the same to stake an untenable and unreasonable claim against the petitioner. This appears to be the later different stand taken by the petitioner in the course of cross examination of the complainant after he was recalled.

5. The accused examined himself as DW1. He examined another witness as DW2 and the purpose of examination of DW2 was to urge that DW2 was present along with himself, the complainant and Jose Paul, when the subsequent loan was availed from Jose Paul. The accused examined DW3. The purpose of examination of DW3 was to show that on the date of the cheque i.e.: 31-08-2002, on which date, according to the complainant the cheque was issued also, the petitioner was busy with three functions in his family -death anniversary of his mother, house warming of his brother and the baptism of yet another brother's son. According to DW3,