IMPORTANT POINT
On mere assumption accused cannot plead that presumption as contemplated u/s 139 of N.I. Act was rebutted by him.

G. Rajasuria, J.

A resume of facts which are absolutely necessary and germane for the disposal of this Revision would run thus:

(i) The respondent herein filed the complaint under Section 138 of the Negotiable Instruments Act as against the revision petitioner herein. Inasmuch as the revision petitioner pleaded not guilty, an enquiry was conducted.

(ii) During enquiry on the side of the prosecution P.Ws. 1 and 2 were examined and Exts. P.1 to P.6 were marked. However, neither oral nor documentary evidence was produced on the side of the accused.

(iii) Ultimately, the lower Court recorded conviction and imposed the sentence as under:

2. Animadverting upon the judgment of the lower Court, an Appeal was filed for nothing but to be confirmed by the Appellate Court. Impugning and challenging the judgment of both the Courts below, this Revision is filed on various grounds the gist and kernal of them would run thus:

(a) The Courts below failed to take into consideration the responsibility of the complainant to prove the alleged debt involved in the case.

(b) The Courts below erroneously placed reliance on the presumption as contemplated under Section 118 and 139 of the Negotiable Instruments Act.

3. Heard both sides. The point for consideration is as to whether the Courts below were perverse in holding that the cheque was issued in relation to a debt and whether the Courts below wrongly applied Sections 118 and 139 of the Negotiable Instruments Act in deciding the case?

4. Learned Counsel for the revision petitioner, by inviting the attention of this Court to various portions of the evidence, would advance and develop his argument to the effect that absolutely there is no shard or shred, iota or molecular evidence to point out that there existed a preexisting debt relating to which the impugned cheque emerged; simply because no reply was given to the notice, the burden cast upon the complainant to prove the debt did not get obliterated and the presumption as contemplated under Sections 118 and 139 of the Negotiable Instruments Act would in no way enure to the benefit of the complainant as there are catena of decisions to the effect that in the event of the accused even not taking any plea about the existence of the debt, it is the bounden duty of the plaintiff to prove the pre-existing debt. Whereas, the learned Counsel for the respondent-complainant would put forth and set forth his argument to the effect that this is a case in which the revision petitioner/accused had refrained from giving any reply to the pre-litigation notice in view of the fact that the averments as contained in the said notice were true and correct; the complainant examined himself as P.W. 1 and exhibited the document; the accused did not examine himself as a witness in this case and for that matter he had not even chosen to give any statement at the time of his examination under Section 313, Cr. P.C., there is no specific denial of the signature in impugned cheque and in such a case absolutely there is nothing to find fault with the decision arrived at by both the Courts below. Accordingly, he prayed for the dismissal of this Revision.

5. The learned Counsel for the revision petitioner would cite a decision of this Court reported in M.A. Nachimuthu v. N. Ravichandran, 2007 (1) LW (Crl.) 579, and develop his argument to the effect that the burden is heavily on the complainant to prove that on the date of the drawal of the cheque there had been a legally enforceable subsisting debt. Whereas, the learned Counsel for the complainant/respondent herein would appositely and appropriately, correctly and convincingly point out that the cited decision emerged in a case where the complainant filed the Appeal as against the acquittal whereupon, this Court refrained from interfering with the acquittal.

6. At this juncture, I would like to call upon and recollect the following decisions of the Hon’ble Apex Court:

(i) Bindishwari Prasad Singh alias B.P. Singh and Others