The main legal point established is the presumption of liability on the drawer of the cheque under Section 138 of the N.I. Act and the burden of proof on the accused to rebut the presumption.

JUDGMENT :

Rumi Kumari Phukan, J.

Heard Mr. P.P. Dutta, learned Amicus Curiae appearing for and on behalf of the petitioner as well as Mr. M.H. Rajbarbhuiyan, learned counsel representing the respondent.

2. By way of this revision, the petitioner has challenged the impugned judgment and order dated 21.11.2009, passed by the learned Appellate Court of Addl. Sessions Judge, Nagaon, in Criminal Appeal No.35/2007, whereby the learned Appellate Court has affirmed the order of learned trial Court of the Chief Judicial Magistrate, Nagaon wherein accused was convicted under Section 138 of N.I. Act and sentenced the accused/petitioner to pay a fine of Rs.2,50,000/- (Rupees two lakh fifty thousands) as compensation to the complainant, passed in C.R. Case No.1577/2001.

3. Briefly stated the case of the petitioner is that one Md. Amir Khan, complainant/ respondent lodged a complaint against the present petitioner u/s.138 of the N.I. Act, alleging that the complainant is a registered professional money lender having valid registration certificate. The accused Nurul Islam (present revision petitioner) is a business man of the locality who approached the complainant seeking a loan of Rs.3 lacs and the complainant advanced the said amount as loan upon a hand note being executed by the accused. After a few months, the complainant demanded the money back from the accused but he evaded repayment on one after another ground. On repeated request made by the complainant, the accused issued two cheques being No.0078227, dated 18.03.2002 for Rs.62,400/- and No.078228, dated 10.04.2002 for Rs.78,000/- (totaling Rs.1,40,400/-) as a part payment of the total debt. The said two cheques were presented by the complainant in the Nagaon Branch of State Bank of India for collection of the said amount from the accused maintained by the accused with Union Bank of India, Nagaon Branch. On 17.05.2002, the two cheques were returned dishonour due to insufficient fund and the complainant was intimated about the same by the Bank.

4. Thereafter the complainant sent a demand notice to the accused to make the payment of the cheque amount and in response, the accused person sought for some time for payment sent through a registered letter, which was received by the complainant 25.06.2002 but till filing of the complaint case, no payment was made by the accused in respect of the cheque amount. Accordingly the complainant filed a complaint to proceed against the accused u/s.138 of the N.I. Act.

5. On appearance of the accused person, the particulars of the offence u/s.138 of the N.I. Act were read over to the accused prior framing of charge and explained to the accused, to which he pleaded not guilty and claimed to be tried.

6. During the trial, the complainant examined himself and two other witnesses in support of the prosecution story and also exhibited some documents. The accused person also examined three witnesses in support of his plea and his statement u/s.313 CrPC was recorded, wherein the accused pleaded not guilty.

7. The learned trial Court, after hearing the argument of the parties, convicted him under Section 138 of N.I. Act and sentenced to pay a fine of Rs.2,50,000/- (Rupees two lakhs fifty thousands) as compensation to the complainant, as aforesaid.

8. On appeal so preferred by the accused/petitioner, the same was dismissed and the order of the trial Court was affirmed and he was directed to surrender before the learned trial Court to make payment within a period of two months from the date of order i.e. 21.11.2009.

9. After losing in two forums, the accused/petitioner has preferred the present revision petition challenging the impugned judgment and order dated 21.11.2009, passed by the learned Appellate Court in Criminal Appeal No.35/2007, inter alia, on the ground that the learned Court below has erred in law as well as in fact while passing the impugned judgment, that the learned Court below has failed to appreciate the relevant provision of law u/s.138(a)/(b) and