IMPORTANT POINT
Issuance of cheque carries presumption of liability with it.

P.R. Shivakumar, J.— The accused in S.T.C.No.787/2004 on the file of the learned Judicial Magistrate No. II, Nagercoil, has come forward with the present revision case against the judgment of the appellate judge, namely the Sessions Judge, Kanyakumari Division at Nagercoil dated 10.08.2011 pronounced in C.A.No.68/2007, by which, the judgment of conviction of the trial court pronounced in S.T.C.No.787/2004 and the sentence imposed therein, were confirmed by the appellate court.

2. The revision petitioner was prosecuted by the first respondent herein for an alleged offence punishable under section 138 of the Negotiable Instruments Act, 1881 based on the allegation that for value received, the revision petitioner had issued a cheque dated 22.12.2003 drawn on UCo Bank, Nagercoil branch bearing cheque No.909736 for a sum of Rs.6,18,930/- in favour of the first respondent/complainant, which was returned by the bank without payment when presented for encashment and that even after issuance of the statutory notice calling upon the revision petitioner/accused to arrange for the payment of the cheque amount, the revision petitioner/accused failed to do so within the time allowed by the statute, thereby driving the first respondent/complainant to prefer a private complaint under section 200 Cr.P.C. for prosecuting the revision petitioner and punishing him for an offence under section 138 of the Negotiable Instruments Act, 1881. The revision petitioner/accused took a plea before the trial court admitting the issuance of the cheque, but at the same time contending that the cheque was not issued for the discharge of any legally recoverable debt or enforceable liability. According to the contention of the revision petitioner/accused, the cheque was issued as a security for the amounts lent by the first respondent/complainant to various persons through the revision petitioner/accused and even after the recovery of those debts from the borrowers, the first respondent/complainant, chose to prosecute the petitioner based on the dishonour of the abovesaid cheque to wreak vengeance on him for his refusal to give evidence in his favour in a Departmental proceedings initiated against him.

3. On service of process, the revision petitioner/accused appeared and denied having committed the offence alleged. Accordingly, a summary trial was conducted by the trial court, in which the first respondent herein/complainant was examined as the sole witness on the side of the complainant. Six documents were produced in proof of the averments made in the complaint. After the completion of evidence on the side of the complainant and also after examining the accused under section 313(1)(b) Cr.P.C., the revision petitioner/accused himself led evidence as DW-1, besides examining three other witnesses as D.Ws.2 to 4. Three documents were marked as Exs.D1 to D3 on his side.

4. The learned Judicial Magistrate No. II, Nagercoil, after considering the evidence in the light of the arguments advanced on both sides, found that the charge of commission of an offence under section 138 of the Negotiable Instruments Act, 1881 stood proved beyond reasonable doubt and that the revision petitioner/accused failed even to prove his defence on preponderance, which would be sufficient to rebut the presumption contemplated under section 139 of the Negotiable Instruments Act, 1881 and recast the burden of proof on the first respondent herein/complainant. Ultimately, the learned Judicial Magistrate No. II, Nagercoil found the petitioner herein/accused guilty of the offence under section 138 of the Negotiable Instruments Act, 1881, convicted him for the said offence and imposed a sentence of one year’s simple imprisonment and a fine of Rs.5,000/- with a default sentence of two month’s simple imprisonment by his judgment dated 22.03.2007. The said judgment was challenged before the appellate court, namely Sessions Court, Kanyakumari Division at Nagercoil. The learned Sessions Judge,