The burden of proof to establish the execution and handing over of a cheque rests on the complainant, and the presumption under Section 139 of the N.I. Act arises only after such proof. Commercial morality and the responsibility of account holders in dealing with cheques are important considerations in cases under Section 138 of the N.I. Act.

This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.

2. The cheque is for an amount of Rs.70,000/-. It bears the date 1.10.2003. The petitioner now faces a sentence of S.I. for a period of six months. There is also a direction to pay the actual cheque amount of Rs. 70,000/- as compensation and in default to undergo S.I. for a further period of two months.

3. The signature in the cheque is admitted. The notice of demand, though addressed in the correct address of the petitioner, was returned unclaimed and did not admittedly succeed in securing payment. The complainant examined himself as PW1 and proved Exts.P1 to P6. The accused, in the course of the trial, attempted to advance a contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability. He took up a defence which appears to me to be strange. He contended that PW1, along with DW3, were co-producers of a music album, in which the petitioner was requested to render songs by whistling. He is said to be an expert in that art form. According to him, PW1 insisted when the said arrangement was struck that two blank signed cheques and a signed blank paper must be given by the petitioner to PW1 in order to secure his interests. The suggestion appears to be that PW1 apprehended that the petitioner may make himself scarce and unavailable to complete the project. It was hence that the petitioner was compelled to part with two signed blank cheques, of which one was allegedly misutilised by the complainant to stake the present untenable and false claim against the petitioner. He examined himself as DW1 and a person as DW2, who claimed to be the P.R.O. in the project of releasing the music album. DW3 is another person, who, according to the petitioner, was the co-producer of the music album. Mos 1 and 2 were produced. They are the C.D. cassette and audio cassette in which PW1 is described as a co-producer along with DW3.

4. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I. Act and that the petitioner has not succeeded in proving or probabilising his case. Accordingly they proceeded to pass the impugned concurrent judgments.

5. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner only reiterates the contentions that were raised before the courts below. He asserts that there is no satisfactory evidence to prove that the cheque was issued for the due discharge of any legally enforcible debt/liability.

6. I have heard the learned counsel for the petitioner at length. I have been taken through the evidence available in the case. Primarily we have the oral evidence of PW1 about the circumstances under which Ext.P1 cheque admittedly written on a cheque leaf issued to the petitioner by his bank to operate his account travelled from the possession of the petitioner to that of the complainant. His evidence is eminently supported by his ability to produce Ext.P1 cheque. There are indications – convincing according to me, to suggest that the petitioner did not deliberately receive the notice of demand addressed to him by pre-paid post in the correct address.

7. The crucial question is whether the oral evidence of PW1 about the execution and handing over of the cheque can be accepted or not. The evidence of DWs. 1 to 3 are pressed into service by the learned counsel for the petitioner to contend that PW1's evidence about execution and handing over should not be believed or at any rate to hold that reasonable doubt exists about the circumstances under which the cheque, Ext.P1, was received by PW1. At least the benefit of doubt must have been conceded to the petitioner on that crucial aspect, it is co