The presumption under section 139 of the Negotiable Instruments Act is rebuttable, but the accused must adduce evidence to rebut the presumption.

( 1 ) THIS revisional application is directed against the judgment and order dated 8. 2. 200 passed by the learned Additional Sessions Judge, 4th Court, Alipore in Criminal Appeal No. 42 of 1999 thereby dismissing the appeal and affirming the judgment and order of conviction and sentence imposed on the petitioner by the learned Additional Chief Judicial Magistrate (in short ACJM), Alipore in T. R. No. 31/97.

( 2 ) THE aforesaid T. R. No. 31/97 arose out of complaint case No. C-376 of 95 filed by the opposite party No. 2 as complainant against this petitioner under section 138 of the Negotiable Instruments Act (in short N. I. Act ). The facts of the case, in short, as disclosed in complaint is that the complainant company carries on business of manufacturing television sets from its registered office-cum-factory at 106, Narkeldanga Main Road, Calcutta - 54. The accused is proprietor of M/s. Record Mseum, Khagra, Berhampore and the accused used to take television sets from the complainant for business purpose. The accused issued one account payee cheque bearing No. 007979 dated 18. 1. 95 for Rs. 2,82,982. 13 drawn on Bank of Baroda, Beliaghata Branch to the company of petitioner and the said cheque was handed over to complainant at his aforesaid address and accused signed in the cheque as proprietor of Record Museum. The complainant presented the cheque to its banker Indian Bank, Manicktola Branch on 18. 1. 95 for encashment but the said cheque was dishonoured and returned with memo dated 19. 1. 95 bearing note 'refer to drawer'. Thereafter, the complainant sent demand notice through his lawyer dated 1. 2. 95 and the said notice was duly received by the accused on 15. 2. 95. In spite of receipt of the demand notice the accused did not pay the amount of the dishonoured cheque to the complainant, and hence, the complaint. It appears that the learned Magistrate issued process and after appearance of the accused completed the trial and held the accused petitioner guilty under section 138 of the Negotiable Instruments Act. Learned Magistrate sentenced the accused petitioner to pay fine of Rs. 5,65,964/- in default to suffer simple imprisonment for three months. Challenging the order of conviction and sentence this petitioner as appellant preferred appeal being Criminal Appeal No. 42 of 1999 before the learned Sessions Judge, South 24-Parganas at Alipore and the said appeal was heard by the learned Additional Sessions Judge, 4th Court, Alipore. The learned Additional Sessions Judge by his judgment and order dated 8. 2. 2000 dismissed the appeal and affirmed the order of conviction and sentence passed by the learned ACJM.

( 3 ) MR. Joymalya Bagchi, learned advocate for the petitioner contended that the learned Magistrate did not follow the legal procedure in the trial and did not examine the accused under section 251 of Criminal Procedure Code properly. In the examination under section 251 of Criminal Procedure Code the learned Magistrate did not state to the accused the cheque number and its date and also date of dishonour and date of demand notice. As particulars of alleged offence or substance of accusation was not explained to the accused properly he could not prepare his defence well and was prejudiced. The learned Additional Sessions Judge did not take notice that learned Magistrate did not examine accused under section 251 of Criminal Procedure Code in accordance with law. Both the learned Magistrate as well as the learned Additional Sessions Judge jumbled up evidence and confused themselves in appreciating evidence. Examination of accused under section 313 Criminal Procedure Code was not proper. Learned Sessions Judge placed much reliance on exts. 4 and 6 but did not notice that during examination under section 313 Criminal Procedure Code no question was put to the accused relating to those documents and, such documents cannot be used in the judgment to base conviction.

( 4 ) MR. Bagchi contended that the th