IMPORTANT POINT
The presumption of liability under Section 139 of the N.I. Act is mandatory, and the burden to rebut this presumption lies with the accused, who must provide credible evidence to support any claims of prior payment.

JUDGMENT :

(Susmita Phukan Khaund, J.)

1. Heard Mr. A. Paul, learned counsel appearing for the petitioner. Also heard Mr. B. Sarma, the learned Additional Public Prosecutor representing the State of Assam and Mr. S. Munir, learned counsel for the respondent no. 2.

2. This application under section 397/401 of the Code of Criminal Procedure (Cr.P.C for short) has been preferred by Sri Narayan Barman -petitioner herein challenging the legality and propriety of the order dated 22.04.2019 passed by the learned Addl. Sessions Judge (FTC) No. 3, Kamrup (M) in Crl. Appeal No. 215/2017 by partly allowing the appeal and upholding the judgment and order dated 24.08.2017 passed by the JMFC, Kamrup (M), Guwahati, in C.R. 1966/2010.

3. The genesis of the case was that the petitioner issued a cheque bearing No. 416097 dated 03.02.2010 for an amount of Rs. 7,10,000/-only drawn on the Panbazar Branch of the State Bank of India allegedly to discharge his liability of a debt. On 19.03.2010, the respondent no. 2 presented the aforementioned cheque in his bank, i.e. the Union Bank of India at G.S. Road, Guwahati, but the cheque was returned due to insufficiency of funds. A demand notice was issued by the respondent No. 2 via registered post with A/D to the petitioner through his advocate on 07.04.2010, intimating him about the dishonour of the cheque and asking him to pay the amount within 15 days of receipt of the demand notice, but the petitioner failed to repay his debt.

4. The respondent No. 2 was impelled to move the Court and the complaint under Section 138 of the Negotiable Instrument Act, 1881 (N.I. Act for short) was filed against him and cognizance was taken and summonses were issued. On his appearance, offence was explained and the petitioner contested the proceeding and examined 2 (two) witnesses to buttress his claim. The witnesses were cross-examined in extenso. On closure of prosecution evidence, the petitioner's statement was recorded under section 313 Cr.P.C and his plea of defence was that he had already paid an amount of Rs. 3,90,000/-to the respondent No. 2 in cash. He also adduced the evidence of D.W-1.

5. The following points were delineated by the trial court in order to conclusively decide the case.

“a) Whether the accused had issued the cheque (Ext. 1) bearing no. 416097 in discharge of his lawful debt and liability?

b) Whether the Ext.1 cheque was dishonoured due to "insufficient fund" as mentioned in Ext.2 Return Memo?

c) Whether a valid legal notice was issued to the accused?

d) Whether the accused, in spite of receiving the demand notice, had failed to repay the cheque amount within the stipulated period?”

6. It was held by the learned trial Court that the plea of the petitioner that the cheque marked as Exhibit-1 was issued by the petitioner as security lacks merit. There is no dispute between the parties that an amount of Rs. 8,10,000/- was given to the petitioner by the respondent No. 2 on different dates and out of the said amount Rs. 1,00,000/- had been repaid by the petitioner. The initial burden on the prosecution was to prove that the petitioner had issued the cheque in discharge of a legally enforceable debt and liability. The defence was to rebut the liability.

The plea taken by the defence -petitioner herein is that:-

(i) He paid an amount of Rs. 1,50,000/-on 10.06.2009 in presence of Robin Thakuria,

(ii) An amount of Rs. 1,50,000/-on 11.10.2009 at the railway station and,

(iii) An amount of Rs. 48,000 on 16.12.2009 in his nephew’s flat to the respondent no. 2.

It was held by the learned trial court that there is no ocular or documentary evidence to buttress the claim of the petitioner that the total amount of Rs. 3,90,000/-was already paid to the respondent No. 2.

7. The learned trial court relied on the decision of Hon’ble the Supreme Court in Rangappa Vs. Sri Mohan, in Crl. Appl. No. 1020/2010 decided on 07.03.2010, wherein it has been observed and held that:-

“Once the cheque relates to the account of the accus