B.D. Agarwal, J.

1. This revision application under Section 397 /401 read with Section 482 of the Criminal Procedure Code, 1973 has been filed by the accused, assailing the legality and correctness of the judgment dated 31.12.2008, passed by the learned Sub-Divisional Judicial Magistrate, Nalbari in CR Case No. 598 of 2007 which has been affirmed by the learned Sessions Judge, Nalbari in Criminal Appeal No. 8 of 2009 vide judgment dated 30.4.2011. By these concurrent judgments the petitioner has been convicted under Section 138 of the Negotiable Instruments Act, 1881 (briefly 'N.I. Act') and the accused/petitioner has been sentenced to pay fine of Rs. 7,70,000/- (Cheque amount) and 10% thereon with default stipulation of one year rigorous imprisonment. Heard Mr. D. Choudhury, learned counsel for the petitioner and Mr. B.B. Gogoi, learned Additional Public Prosecutor and Mr. Arnali Biswas, learned counsel for the respondent No. 2/complainant. I have also perused the impugned judgments.

2. The facts of the case are very simple and in a narrow compass. Broadly the complainant's case is that the accused had borrowed a sum of Rs. 7,70,000/- for an urgent need with a promise to return the money as and when demanded by the complainant. It is the further case of the complainant that on repeated demands the accused issued Cheque No. 136417 dated 22.8.2007 for a sum of Rs. 7,70,000/-, drawn on State Bank of India, Nalbari branch. The cheque was deposited in the bank and the same was dishonoured on account of insufficient fund. Thereafter, statutory notice was issued to the accused and having not received the cheque amount the complaint under Section 138 of the N.I. Act was filed.

3. In order to establish the case, complainant examined a bank officer as PW-1, in addition to giving his own evidence. The complainant has proved, inter-alia, the cheque, dishonour letters from the bank and statutory notice issued to the accused.

4. On the other hand, the accused had put up a plea of extortion of the cheque and denied any legally enforceable liability to the complainant. The same plea was also taken in the reply to the notice of the complainant and the reply has been marked as Exhibit-4.

5. After going through the impugned judgments it appears to me that the petitioner has been convicted solely on the basis of presumptions provided under Section 118 and 139 of the NI Act. Besides this, the courts below have held that the accused had also failed to discharge his burden that there was no legally enforceable liability to the complainant.

6. Mr. Choudhury, learned counsel for the petitioner argued that respondent No. 2 (complainant) had based his case solely on the basis of disputed cheque without any corroborative evidence of lending hand-loan of Rs. 7,70,000/-. The learned counsel also contended that it is the burden of the complainant to prove that there was a legally enforceable liability and unless that fact is proved there is no occasion for the accused to give rebuttal evidence. The learned counsel also submitted that the accused can discharge his burden on the basis of materials on record and without giving oral evidence and the standard of rebuttal evidence will be that of "preponderance of probabilities" and not that of proof beyond all reasonable doubts. In support of these submissions, the learned counsel cited the judgment of the Hon'ble Supreme Court rendered in the case of K. P. O. Moideenkutty Hajee Vs. Pappu Manjooran; (1996) 8 SCC 586, Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54, Rangappa Vs. Sri Mohan (2010) 11 SCC 441.

7. Per contra, Mr. Biswas, learned counsel for the respondent No. 2 contended that a case of NI Act cannot be equated with general penal offence and, as such, the degree of proof of the case is different from a criminal trial. The learned counsel also submitted that a case under Section 138 of the NI Act is based on special law and, as such, the presumptions provided in various provisions of l