IMPORTANT POINT
The cheque must have been issued for discharge of the existing legally recoverable debt or liability.

M. Sasidharan Nambiar, J.—Revision petitioner in Crl. R.P. No. 2587 of 2007 is the complainant and revision petitioner in Cri. R.P. No.4332 of 2006 is accused. The revision petitioner in Cri R.P. No. 2587 of 2007, hereinafter referred to as the complainant, lodged the complaint before Judicial First Class Magistrate-I, Thrissur, contending that revision petitioner in Cri. R. P. No. 4332 of 2006 hereinafter referred to as the accused was entrusted with gold to prepare gold ornaments and he failed to account 500 grams of gold so entrusted and in the year 2000 accused along with his mother and two sisters executed the promissory note for Rs. 2,00,000 on 8.1.2000 in favour of the complainant treating the value of 500 grams of gold to be returned by the accused, calculated Rs.400 as per gram as the consideration and later towards repayment of the amount covered by the promissory note accused issued Ex. P1 cheque dated 8th July, 2002 for Rs. 1,00,000 drawn in his account maintained in Ammadam Service Co-operative Bank Limited. When the complainant presented the cheque for encashment through his account in Koorkkanchery Branch of Thrissur Urban Co-operative Bank Ltd., Ex.P1 cheque was dishonoured for want of sufficient amounts. The complainant sent Ex. P4 notice to the accused, demanding the amount covered by the dishonoured cheque. Inspite of service of intimation, accused did not receive the notice and did not pay the amount and thereby committed the offence under Section 138 of the Negotiable Instruments Act. Magistrate took cognizance of offence as C.C. No. 978 of 2002. Accused pleaded not guilty. Complainant was examined as PW1 Exs. P1 to P6 were marked on his side. Accused was not examined. The learned Magistrate on the evidence found the accused guilty. He was convicted and sentenced to simple imprisonment for one year and a compensation of Rs. 20,000 and in default, simple imprisonment for one month. Accused challenged the conviction before Sessions Court, Thrissur in Criminal Appeal No.698 of 2005. The learned Sessions Judge on re-appreciation of evidence confirmed the conviction but reduced the substantive sentence to simple imprisonment for 15 days and confirmed the compensation. The accused is challenging the conviction and sentence in Cri R.P. No. 4332 of 2006. Contending that Sessions Judge while reducing the substantive sentence should have enhanced the compensation for the amount covered under Ext. P1 cheque, complaint filed Cri R.P. No. 2587 of 2007.

2. The learned counsel appearing for the revision petitioner in both the cases were heard.

3. The argument of the learned counsel appearing for the accused is that neither the trial Court nor the Appellate Court appreciated the evidence in the proper perspective. Relying on the decision of the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde1; Narendra Singh & Anr. v. State of Madhya Pradesh2; Kamala v. Vidhyadharan3, it was argued that burden is on the complainant to prove the ingredients of an offence under Section 138 of the Negotiable Instruments Act and the burden on the complainant is to prove the offence beyond all reasonable doubt and burden of the accused is only to rebut the presumption provided under Section 139 of Negotiable Instruments Act and it could be rebutted by preponderance on probability and this cardinal principle was omitted to be taken note of by the Courts below. The learned counsel argued that though it was the case of the complainant that gold was entrusted to the accused for making ornaments on various occasions and he did not account for 500 grams and, therefore, there was a settlement of accounts where under the gold to be returned by the accused was fixed at 500 grams and assessing the value per gram at Rs. 400, liability was fixed at Rs. 2,00,000, there is absolutely no evidence to prove either that gold was entrusted or that the accused failed to account 500 grams of gold or that the account was settled in 2000 as clai