The burden of proof on the accused to rebut the presumption under Section 139 of the NI Act and the standard of proof required.

ORDER :

1. By way of this Revision, the Revisionist-original complainant has challenged the judgment and order dated 31.03.2012, passed by the learned Additional Sessions Judge, Sabarkantha at Modasa (‘Appellate Court’ in brief) in Criminal Appeal No. 2 of 2009, whereby, the Appellate Court quashed and set aside the judgment and order dated 15.12.2008, passed by the learned Judicial Magistrate First Class, Modasa (in short ‘Trial Court’) in Criminal Case No. 2562 of 2003.

2. For the sake of convenience, the Revisionist shall be referred to as the Complainant, whereas, Respondent No. 1 shall be referred to as the accused, herein after.

3. The brief facts of the case are that the complainant instituted a complaint, under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’ hereinafter), before the trial Court, wherein, he stated that the accused happened to be his friends and since, the accused was in the need of money, the complainant had lent him an amount of Rs. 90,000/-. According to the complainant, towards the security of the aforesaid amount, the accused had given him a cheque dated 11.07.2023, bearing No. 752664, drawn on the Sabarkantha District Cooperative Bank. It is the case of the complainant that on 11.07.2023, when he presented the said cheque for payment, the same was returned with the endorsement ‘Insufficient Funds’.

3.1 The complainant, therefore, issued a notice by R.P.A.D. through his learned Advocate to the accused on 20.07.2003 and the same was duly served on the accused on 25.07.2003. Despite that, since, the accused failed to repay the cheque amount, the complainant instituted a complaint, being Criminal Case No. 2562 of 2003, before the trial Court. The trial Court, after giving due opportunities to both the sides and after considering the material on record, passed the order dated 15.12.2008 and convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for six months and also ordered to pay Rs. 90,000/- towards compensation to the complainant.

3.2 The accused preferred Criminal Appeal No. 2 of 2009, against the order dated 15.12.2008, wherein, the Appellate Court, after hearing both the sides and perusing the material placed before it, passed the impugned order dated 31.03.2012 and set aside the order dated 15.12.2008 passed by the trial Court.

3.3 Being aggrieved and dissatisfied with the order dated 31.03.2012, passed by the Appellate Court, the complainant has preferred the present Revision.

4. Learned Advocate, Mr. Pandya, appearing for the complainant took this Court through the order dated 15.12.2008, passed by the trial Court, and submitted that after recording the cogent and credible evidence available on the record, convicted the accused for the offence punishable under Section 138 of the NI Act. It was submitted that, since, the accused admitted his signature on the cheque in question, the trial Court rightly held that the presumption available under Section 139 of the NI Act was running against the accused. It was submitted that the complainant had also issued the statutory notice on 20.07.2003, which was duly served on the accused on 25.07.2003, and even after that as the accused did not make the payment, the complainant filed the complaint. He referred to Page-30 of this petition and internal Page-5 of the impugned order dated 15.12.2008 and submitted that the complainant had stated before the trial Court that he had paid Rs. 90,000/- to the accused, out of the amount received by him from sell of cotton and castor seeds and that he holds 10 bighas of more agricultural land, than what his brothers have and thereby, it was submitted that the complainant had sufficient means to lent the amount of Rs. 90,000/- to the accused. It was, further, submitted that the trial Court, therefore, had rightly believed that due to friendship with the accused, the complainant had lent him Rs. 90,000/- which is totally ignored by the Ap