The presumption under section 139 of the NI Act is rebuttable, and the standard of proof for rebuttal is 'preponderance of probabilities'.

JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Mr. B Choudhury, learned counsel for the petitioner. Also heard Ms. S.H. Bora, learned Addl. PP, appearing for the State Respondent No. 1 and Mr. H Kalita, learned counsel for respondent No. 2.

2. In this petition, under Section 397/401 Cr.P.C. the petitioner has challenged the legality, propriety and correctness of the Judgment and Order, dated 02.01.2020, passed by the learned Additional Sessions Judge No. 3, Kamrup (M), Guwahati in Criminal Appeal No. 163/2018.

3. It is to be noted herein that vide impugned judgment and order, the learned Addl. Sessions Judge has upheld the judgment and order dated 13.09.2018, passed by the learned Judicial Magistrate First Class, (JMFC) Kamrup (M) in C.R. Case No. 3192/2016, wherein, the learned court below has convicted the petitioner under section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for 6 months and also to pay Rs.3,50,000/- against the cheque amount of Rs.1,80,000/- with default stipulation. However, the learned Addl. Sessions Judge has modified the sentence of imprisonment from six months to one month only.

4. The factual background leading to the filing of the present petition is briefly stated as under:

“The petitioner has borrowed a sum of Rs.1,80,000/- from the respondent. In order to discharge the said debt, the petitioner has issued a cheque, bearing No. 575457, dated 20.07.2016, drawn in SBI Bhangagarh Branch. Thereafter, the respondent herein deposited the said cheque for encashment with his banker, Overseas Bank on 20.07.2016. But, the same returned dishonoured with endorsement, ‘exceed arrangement’. Thereafter, the respondent herein has issued notice to the petitioner, through his Advocate, on 01.08.2016, demanding the cheque amount. But, the petitioner has failed to make the payment of the same within the stipulated period, inspite of receipt of the notice on 23.09.2016. Being left with no other option, the respondent herein, has filed a complaint before the Court of learned Chief Judicial Magistrate, Kamrup, Guwahati, under section 138 NI Act. Thereafter, hearing both the parties, the learned JMFC has found the offence under section 138 NI Act well established against the petitioner, and accordingly, convicted him under section 138 NI Act and sentenced him as aforesaid.”

Thereafter, being aggrieved the petitioner preferred an appeal before the Court of learned Additional Sessions Judge No. 3, Kamrup, Guwahati, being Criminal Appeal NO. 163/2018, and the learned Additional Sessions Judge No. 3, has dismissed the appeal and upheld the judgment and order, dated 13.09.2018, passed by the learned JMFC, however, modified the sentence of imprisonment from six months to one month only.

5. Then being highly aggrieved, the petitioner has approached this Court and preferred the present petition on the ground that the learned Additional Sessions Judge No. 3, Kamrup, Guwahati has:

(i) failed to appreciate the evidence in its proper perspective and as such, the impugned judgment is liable to be set aside.

(ii) drawn presumption under section 118 and section 139 of the NI Act and the petitioner has succeeded in rebutting the said presumption and as such, the impugned order is liable to be set aside.

(iii) the respondent has failed to establish that there was any legally enforceable debt between him and the petitioner and the learned court below has failed to consider this aspect.

(iv) the learned courts below have failed to consider Exhibit-B, the FIR lodged by wife of the petitioner and also he failed to establish that the sum lent to the petitioner was from a lawful source.

(v) the wife of the petitioner has shown one cheque to the wife of the respondent and she has failed to return the cheque and to that aspect, one FIR has been filed with the Dispur Police Station and the learned court below has failed to consider this aspect and therefore, it is contended to allow this petition by setting aside the impugned jud