IMPORTANT POINT
A statutory presumption has on evidentiary value. Until the contrary is proved, every negotiable instrument was or is drawn for consideration.

N.K. Mody, J.—Being aggrieved by judgment dated 17.1.2005, passed by 15th Additional Sessions Judge, Indore in Criminal Appeal No.255/2004, whereby judgment dated 7.5.2004, passed by JMFC. Indore in Criminal Case No.1914/2003, by which petitioner was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as N.I. Act) with a fine of Rs. 1,50,000/- and jail sentence of one month was maintained, the present petition has been filed.

2. Short facts of the case are that the respondent filed a complaint under Section 138 of N.I. Act on 7.4.1995 alleging that respondent lent a sum of Rs. 1 lac in cash on 7.3.1994 to the petitioner for her family needs and commercial need of her husband Ramlal. It was alleged that the petitioner issued post-dated cheque bearing No.519253 dated 7.3.1995 and assured that upon presentation of the cheque amount shall be paid to the petitioner. It was alleged that after due date respondent submitted the cheque for encashment through Bank of India. Branch, M.G. Road, Indore but the same was returned back as the account was closed. It was alleged that the petitioner after issuance of cheque closed the account, which amounts to cheating. It was also alleged that after return of the cheque on 8.3.1995 respondent issued a notice for demand which was duly served but in spite of that cheque amount was not paid to the respondent. It was alleged that the petitioner has committed an offence which is punishable under Section 138 of N.I. Act. It was prayed that after taking cognizance and notice petitioner be punished.

3. After filing of the complaint statement of the respondent was recorded under Section 202 of Cr.P.C. After taking cognizance and also after framing the charge against the petitioner evidence was recorded and petitioner was convicted as stated above, which was maintained by the learned Additional Sessions Judge, hence, this petition has been filed.

4. Learned Counsel for the petitioner argued at length and submits that the impugned order is illegal, incorrect and deserves to be set aside. It is submitted that there was nothing on record to show that at any point of time amount of Rs. 1 lac was given to the petitioner by respondent. It is submitted that much before issuance of cheque account was closed by petitioner, therefore, there was no justification on the part of the Courts below, in convicting the petitioner.

5. Learned Counsel for the petitioner S.M. Dagaonkar placed reliance on a decision of the Hon’ble Supreme Court in the matter of Krishna Janardhan Bhat v. Dattatraya G. Hegde1 wherein Hon’ble Supreme Court has held that a statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not must, therefore, be determined keeping in view the other evidence on record. For the said purpose, stepping into the witness-box by the appellant is not imperative. In case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.

6. Learned Counsel for the petitioner also placed reliance on a decision in the matter of M.S. Narayana Menon @ Mani v. State of Kerala and Another2 wherein Hon’ble Supreme Court has observed that if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138. It was also observed that presumptions both under Sections 118(a) and 139 are rebuttable in nature. Learned Counsel for the petitioner submits that right from the beginning the case of the petitioner was that the petitioner was in good terms with the respondent who was in need of money. Blank cheque was given by the petitioner to the respondent on his request as respondent wanted to show someone that respondent is having a blank cheque. It was submitted by the petitioner that this fact was proved by the evidence, adduced