Important Points:
Whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque.

ORDER :

The revision petitioner is the accused in the case C.C.No.5611/2011 on the file of the Court of the Judicial First Class Magistrate, Irinjalakuda.

2. The aforesaid case was instituted upon the complaint filed against the petitioner by the first respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').

3. The case of the complainant is as follows: The complainant and the accused are neighbours. The complainant had lent money to the accused on various occasions. On 20.03.2011, the complainant went to the house of the accused and demanded repayment of the money. The complainant and the accused verified the accounts and finally settled the amount at Rs.4,50,000/-. In order to discharge the aforesaid liability, the accused executed and issued a cheque dated 07.04.2011 for Rs.4,50,000/- to the complainant. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. She sent a reply raising untenable contentions. She did not pay the amount of the cheque.

4. The accused pleaded not guilty. During the trial of the case, the complainant got herself examined as PW1 and Exts.P1 to P6 documents were marked on her side. DW1 was examined on the side of the accused.

5. The trial court found the accused guilty of the offence under Section 138 of the Act and convicted her thereunder. The trial court sentenced her to undergo simple imprisonment for a period of three months and also directed her to pay an amount of Rs.4,50,000/-as compensation to the complainant. The trial court also directed that, in default of payment of compensation, the accused shall undergo simple imprisonment for a period of three months.

6. The petitioner/accused filed Crl.A.No.187/2016 challenging the order of conviction and sentence passed against her by the trial court. The appellate court confirmed the conviction against the petitioner but modified the sentence imposed on her by the trial court. The appellate court modified the substantive sentence of imprisonment imposed on the petitioner and reduced it to imprisonment till the rising of the court and maintained the direction to pay compensation of Rs.4,50,000/-to the complainant but reduced the default sentence of imprisonment to a period of 45 days.

7. The concurrent verdicts of guilty and conviction made against her by the courts below and the sentence imposed on her by the appellate court are challenged by the accused in this revision petition.

8. Heard the learned counsel for the revision petitioner and also the first respondent/complainant.

9. Learned counsel for the petitioner has raised the following contentions before this Court. (1) The petitioner had no occasion to issue any cheque to the complainant in discharge of a pre-existing liability. (2) The complainant had no financial capacity to lend an amount of Rs.4,50,000/-. (3) The sentence of fine was imposed on the petitioner by the courts below without taking into consideration her capacity to pay the amount.

10. There was a delay of one day in filing the complaint. The delay was condoned by the trial court as per the order passed in the application (Crl.M.P.No.6701/2011) filed by the complainant for that purpose.

11. The plea raised by the petitioner that she had no occasion to issue any cheque to the complainant in discharge of a pre-existing liability, in other words, amounts to denial of execution of Ext.P1 cheque for Rs. 4,50,000/-and delivery of the same by her to the complainant.

12. When examined as PW1, the complainant has given evidence in examination-in-chief in tune with the averments in the complaint. She has given evidence that she went to the house of the accused and demanded repayment of the amount lent by her and the accounts were settled for Rs