A cheque issued for repayment establishes liability under Section 138 of the N.I. Act; the burden to rebut the presumption of liability lies with the accused, who failed to provide sufficient evidence.

JUDGMENT :

N. UNNI KRISHNAN NAIR, J.

1. Heard Mr. M Choudhury, learned counsel for the petitioners. Also heard Mr. B M Choudhury along with Mr. U Choudhury, learned counsels, appearing for the respondent No. 1 and Ms. S H Bora, learned Additional Public Prosecutor, Assam for the respondent No. 2.

2. The challenge in the present revision petition is to the judgment and order dated 13.02.2014 passed by the learned Additional Sessions Judge, Nagaon in Crl. A. No. 62(N)/2013, upholding the judgment and order dated 14.06.2013 passed by the learned Judicial Magistrate First Class, Nagaon in C.R. Case No. 2806/2009, convicting the petitioners, herein, under Section 138 of the Negotiable Instruments Act, 1881 and sentencing them to pay compensation of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand), in default, to undergo Simple Imprisonment for 1 (one) year.

3. The facts in brief requisite for adjudication of the issue arising in the present criminal revision petition is noticed as under:

The respondent No. 1, herein, had filed a complaint before the Court of learned Judicial Magistrate First Class, Nagaon, which was registered as C.R. Case No. 2806/2009 against the petitioners, herein, alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881.

As projected in the complaint, the petitioners, herein, being in need of money for investment in their NGO, had borrowed Rs.1,00,000/- (Rupees One Lakh) from the respondent No. 1 with a promise to return the same on demand along with a lump sum profit. The respondent No. 1, on making a demand for repayment of the loan amount, the petitioners, herein, had issued a cheque bearing No. 002888 dated 19.02.2009, amounting to Rs.1,00,000/- (Rupees One Lakh) only, in the name of the respondent No. 1 drawn on Punjab National Bank. The respondent No. 1 deposited the cheque for encashment in his account maintained with the Nagaon Branch of Indian Bank, but the said cheque was returned on 13.03.2009 on the ground of insufficient fund in the account of the petitioners, herein. The said fact being brought to the notice of the petitioners, herein, they requested the respondent No. 1 to represent the cheque again after a few days. Accordingly, the respondent No. 1 represented the cheque, however, the same was again returned on the ground of insufficiency of funds in the account of the petitioners.

The above development having taken place, the respondent No. 1 issued a demand notice dated 19.06.2009 to the petitioners, herein, by registered post with A/D. The petitioners, herein, on receipt of the said notice issued a reply thereto on 09.07.2009, inter- alia, admitting therein about issuance of the cheque of Rs.1,00,000/- (Rupees One Lakh). However, a plea was taken therein that the amount involved in the cheque was paid to the respondent No. 1. However, as per agreement he did not return the cheque. The liability to pay the amount of cheque was denied and a demand was made of the respondent No. 1 to return the cheque as he had already received the payment against the same.

The respondent No. 1, herein, thereafter, instituted the complaint case before the learned Trial Court and the matter was considered by the learned Judicial Magistrate First Class, Nagaon.

During the trial, the respondent No. 1 had examined 4 witnesses. Thereafter, the statements of the petitioners, herein, were recorded under