When a complainant discharges their initial burden under Sections 138 and 139 of N.I. Act, presumptions in their favor come into play, which can be rebutted by preponderance of probabilities.

ORDER :

A. Badharudeen, J.

This revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for convenience) is at the instance of the sole accused in C.C.No.295/2017 on the file of the Judicial First Class Magistrate Court-II, Perumbavoor.

2. Challenge in this revision petition is the veracity of the judgment of the Judicial First Class Magistrate Court-II, Perumbavoor, in the above case dated 05.10.2020, modified by the Additional Sessions Judge, Muvattupuzha in Crl.Appeal No.278/2020 dated 27.09.2022.

3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. Since the case was taken up for orders in the admission stage itself, notice to the respondent is dispensed with.

4. I shall refer the parties in this Revision Petition as 'complainant' and 'accused' for convenience.

5. The complainant initiated prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act ('N.I. Act' for short) against the accused, when cheque for Rs.1,75,000/- dated 20.01.2014, alleged to be issued by the accused to the complainant in repayment of Rs.2 lakh alleged to be borrowed by the accused from the complainant, was dishonoured, when it was presented for collection.

6. The trial court secured the presence of the accused for trial. During trial, PW1 examined and Exts.P1 to P6 were marked on the side of the complainant. Ext.X1 also was marked.

7. The accused was questioned under Section 313(1)(b) of Cr.P.C. and thereafter, though he was given opportunity to adduce defence evidence, he did not adduce any evidence.

8. The trial court given emphasis to the evidence of PW1 and Exts.P1 to P6 to hold that the complainant discharged his initial burden in the matter of executing Ext.P1 cheque.

9. The defence case advanced before the appellate court was that the accused borrowed Rs.40,000/- from the complainant during 2004 and during this period, the present cheque was entrusted. The further contention was that the said amount was paid during 2011 and, therefore, the cheque lacks consideration.

10. Another contention raised before the appellate court was that the complainant had not disclosed the details of transaction in the lawyer notice issued, as per Ext.P4 as well as in the complaint. But this contention was negatived by the appellate court relying on a decision of this Court reported in 2021 (2) KHC 432), Basheer v. Usman Koya. In fact, the legal position relied on by the appellate court was absolutely correct. So, this contention cannot be sustainable. The source of complainant to arrange Rs.2 lakh also was challenged before the appellate court and the same was negatived by the appellate court believing the evidence of PW1 to the effect that the complainant had been conducting Centre for Examination of Pollution of vehicles at Pattalil and also he had a chitty transaction and the money derived out of the same was given to the complainant.

11. The trial court also negatived the above contentions for justified reasons, as could be read out from the trial court judgment.

12. On the basis of the said findings, the trial court imposed sentence to undergo simple imprisonment for two months under Section 138 of the N.I. Act and ordered to pay compensation of Rs.1,75,000/- under Section 357(3) of Cr.P.C. to the complainant and in default of payment of compensation, to undergo simple imprisonment for one month.

13. The appellate court modified the sentence to imprisonment till rising of the court and to pay compensation of Rs.1,75,000/- and in default of payment of compensation, to undergo simple imprisonment for one month.

14. In this case, the issuance of cheque is admitted. But the accused raised contention that the cheque was issued in the year 2004 when he had borrowed Rs.40,000/-. In fact, the said contention or the contention to the effect that the said liability was discharged, not proved even by a remote piece of evidence. To t