The main legal point established in the judgment is the mandatory presumption under Section 139 of the NI Act, which shifts the burden to the accused to disprove that the cheque was not issued for the discharge of a debt or liability. The judgment also emphasizes the higher burden on the accused to disprove a presumption of law and the distinction between presumption of fact and presumption of law.

I.A. Ansari, J.

1. By judgment and order, dated 26.12.2006, passed, in complaint Case No. 3745C/2004, learned Sub-Divisional Judicial Magistrate No. 2, Guwahati, convicted the accused-petitioner under Section138 of the Negotiable Instrument Act, 1881 ('the NI Act') and sentenced him to undergo simple imprisonment for one year with further direction to pay to the complainant the cheque amount of Rs. 60,000 and another amount of Rs. 50,000, as compensation, under Section 357, Cr.PC and, in default of payment, so directed, suffer simple imprisonment for a further period of one year. Aggrieved by his conviction and the sentence, passed against him, as mentioned hereinbefore, the accused-petitioner preferred an appeal. By judgment and order, dated 16.11.2007, passed, in Criminal Appeal No. 05/2007, while the learned Additional Sessions Judge (FTC No. 4), Kamrup, Guwahati, has upheld the conviction of the accused-petitioner under Section 138, N.I. Act, it modified the sentence by directing the accused-petitioner to suffer simple imprisonment for a period of one year and to pay, in all, a sum of Rs. 90,000, as compensation, under Section 357 Cr.PC, and, in default, to undergo simple imprisonment for a period of three months. With such modification in the sentence, the appeal has been dismissed. Still dissatisfied, the accused-petitioner has presented, this revision.

2. I have heard Mr. P.K. Roychoudhury, Learned Counsel, appearing on behalf of the accused-petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. None has appeared on behalf of the complainant-opposite party, though notice stands served on him.

3. Before entering into the question as to whether the order of conviction and sentence, passed, against the accused-petitioner, is sustainable in law or not, it is necessary to set out the respective cases of the parties concerned and the reasons, which led to the conviction of the accused-petitioner.

4. The case of the complainant, as unfolded at the trial, was thus: accused Ambika Baishya, in discharge of his liability towards the complainant, Nabajyoti Sharma, issued the cheque No. 494452, dated 4.9.2004, drawn, on the State Bank of India, Silpukhuri Branch, Guwahati, for a sum of Rs. 60,000, in favour of the complainant. The said cheque was deposited by the complainant in his account with his banker, namely, Canara Bank, Guwahati, for encashment, but, accused-person's banker, namely, State Bank of India, Silpukhuri Branch, Guwahati, returned, vide Memo, dated 19.9.2004, the cheque without payment on the ground that the payment had been stopped by the drawer. The complainant issued, on 13.9.2004, a notice, in writing, demanding payment of the cheque amount within fifteen days from the date of the receipt thereof by the accused. The accused did not pay the cheque amount within the period aforementioned, the complainant, then, presented the complaint, which gave rise to complaint Case No. 3745C/2004 aforementioned.

5. When the particulars of offence, under Section 138 of the NI Act, were read over and explained to the accused, he pleaded not guilty thereto. During trial, the complainant adduced evidence by examining four witnessed including himself. The accused was, then, examined under Section 313, Cr.PC, wherein he denied to have committed any offence at all/his defence being that the cheque, in question, had been lost and he accordingly informed his banker about the loss of the cheque, and stopped payment in respect thereof. This apart, according to the accused, the cheque was a 'self-cheque' and that having, somewhere, found the said cheque, the complainant struck off the word 'self', appearing on the cheque, and wrote his own name, as the payee, on the cheque. Thus, according to the defence, the whole case of the complainant was false and based, on fabrication of documents. In support of his case, the accused examined himself as a witness and further adduced evidence by examining one more witness.

6. Ha