The burden of proof to rebut the presumption under Section 139 of the NI Act is on the accused, and failure to raise a plea at earlier stages may not be sustainable at the revision stage.

JUDGMENT :

This criminal revision petition, under Section 397 read with Section 401, Code of Criminal Procedure, 1973 (‘the Code’ and/or ‘the CrPC’, for short), is preferred against the judgment and order dated 13.04.2009 passed by the learned Additional Sessions Judge (FTC), No. 3, Kamrup, Guwahati (‘the appellate court’, for short) in Criminal Appeal no. 42/2007.

2. By the said judgment and order dated 13.04.2009, the appellate court had dismissed the appeal preferred by the petitioner as the appellant (hereinafter also referred to as ‘the accused’, at places, for easy reference) against the judgment and order dated 11.06.2007 passed by the learned Judicial Magistrate, 1st Class, Kamrup, Guwahati (‘the trial court’, for short) in Complaint Case no. 3982C/2004, thereby, affirming the judgment and order of conviction and sentence passed by the trial court. By the judgment and order dated 11.06.2007, the trial court found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (‘the NI Act’, for short) and he was sentenced to undergo simple imprisonment for 1 (one) year and to pay a fine of Rs. 2,00,000/-, in default of payment of fine, to undergo simple imprisonment for another 3 (three) months. It was ordered that the amount of fine, if paid, shall be paid to the complainant as compensation.

3. Before finding out the merit of the contentions raised in this criminal revision petition against the concurrent findings of the trial court and the appellate court, a brief narration of the facts stated in the Complaint Case no. 3982C/2004 is found necessary at first.

4. It was projected by the respondent no. 2 as the complainant (hereinafter also referred to as ‘the complainant’, at places, for easy reference) in the complaint that the accused was an employee of the Government of Assam in the Public Works Department. The complainant and the accused were known to each other. The accused, for certain purpose, borrowed an amount of Rs. 1,50,000/- on 10.03.2004 from the complainant with the assurance that he would return the amount within a period of 1 (one) month. When the accused failed to return the borrowed amount as per his assurance, the complainant made demands to him to make the payment. Thereafter, the accused, on 30.04.2004, issued a cheque bearing no. 633990 for an amount of Rs. 1,50,000/- in favour of the complainant on an account maintained by him at State Bank of India (SBI), Panbazar Branch, Guwahati. On receipt of the said cheque and as requested by the accused, the complainant presented the said cheque for collection on 14.10.2004 at her account bearing No. S/B 7017 maintained at United Commercial (UCO) Bank, Bonda Branch, Guwahati. The said cheque was returned unpaid by SBI to UCO Bank on the ground of insufficiency of fund in the account of the accused and the UCO Bank, in turn, intimated the information of such dishonour to the complainant vide its cheque return memo dated 16.10.2004. On receipt of the said information of dishonour, the complainant sent a demand notice dated 30.10.2004 through her advocate to the accused by registered post with A/D asking the accused to make payment of the amount of Rs. 1,50,000/- within 15 (fifteen) days from the date of receipt of the demand notice. It was asserted that the demand notice was received by the accused on 01.11.2004. When the accused did not pay the cheque amount within 15 (fifteen) days from the date of receipt of the notice, the complaint was filed by the complainant on 29.11.2004 before the Court of learned Chief Judicial Magistrate, Kamrup, Guwahati.

5. On receipt of the said complaint, it was registered as Complaint Case no. 3982C/2004. Thereafter, the learned Chief Judicial Magistrate transferred the complaint case to the Court of learned Judicial Magistrate, 1st Class, Kamrup, Guwahati for disposal. The trial court examined the complainant under Section 200, CrPC. After perusal of the complaint and the statement of the complainant r