IMPORTANT POINT
The main legal point established in the judgment is the presumption under Section-139 of the N.I. Act and the burden of proof on the accused to rebut the presumption.

ORDER :

1. On 29.02.2024, this court has passed the following order:-

“1. Though, the matter was called repeatedly, the learned Advocate for the petitioner did not remain present.

2. In view of the above, issue notice to the petitioner, making the same returning on 2nd April, 2024.”

2. Even today when the matter is called out, none remain present.

3. In view of the above, since the petitioner is already appearing in the Court and also, the petitioner has not surrendered to the custody before the learned trial court, this Court decided to take up the matter on the ground of revision.

4. This Criminal Revision Application is preferred under Section-397 read with Section-401 of Cr.P.C. challenging the concurrent findings recorded by the learned Additional Chief Judicial Magistrate First Class, Keshod (N.I. Act) in Criminal Case No.348 of 2015, whereby, by order dated 06.05.2022, the revisionist – accused has been convicted for the offence under Section-138 of N.I. Act and sentenced to undergo 01 year simple imprisonment and awarded to pay compensation aggregating of Rs.12,50,000/- [per cheque of Rs.2,50,000/-] under Section-357(3) of Cr.P.C. to the complainant within 60 days and in default of payment, to undergo further 03 months simple imprisonment.

5. Being aggrieved by the same, the revisionist has preferred appeal under Section-374 of Cr.P.C. before the learned Additional Sessions Judge, Kesho being Criminal Appeal No.12 of 202, which was dismissed by the learned Additional Sessions Judge and confirmed the order passed by the learned JMFC, Keshod. Hence, this revision.

6. The facts of the prosecution case in nutshell as under:-

6.1 The accused is residing at Keshod and doing the trade and construction business. The complainant has been in a friendly relationship with the accused for a long time and used to go each other from time to time. The accused went to the complainant in person and said, "I need to require Rs.12,50,000/- for sometime in business, if you have it lend me the same, I will give you back this amount in a short time.” So the complainant lent Rs. 12,50,000/- in cash to the accused. Thereafter, the complainant demanded this amount back from the accused. While demanding the amount, the accused to pay the amount due to the complainant by issuing five cheques of Veraval People's Co.-Op. Bank Limited, Keshod branch, which each of Rs. 2,50,000/- given to the complainant. The accused has given Cheque No.018461 to 018465, which was dated 30-11-2014. As per the conversation between the complainant and the accused, on 25-02-2015 these cheques were deposited by the complainant in his account No. 560522133069 of State Bank of India, Keshod Branch, which were returned due to "Fund Insufficient" on the same day. Therefore, the complainant met the accused face to face, but accused did not give any proper answer. Therefore, the intention of the accused appears to be not good. However, the complainant gave the accused one more chance before filing the complaint as per law. The complainant had given notice on 21.03.2015, which was sent through Reg. A. D. Post and served to the accused. Though notice was served to the accused, the accused neither paid the amount as per the cheque nor responded to the notice. Hence, the complainant has filed complaint against the accused under Section-138 of the N.I. Act and prayed to take penal action against the accused and to pay the interest accruing at 18% as per the bank rate from the date of issuance of cheque till the recovery of the amount.

7. The ground, upon which the revision is filed, is that there is error apparent on the face of the record of the orders of the learned trial Court as well as learned appellate Court that the revisionist is an agriculturist and traders and not habitual offender and he is not in a position to pay the whole amount as directed by the learned appellate court below and therefore, the impugned orders are required to be interfered and corrected by the Revisionist Cou