The presumption under Section 139 of the Negotiable Instruments Act favors the complainant, requiring the accused to rebut the presumption of debt, which he failed to do.

ORDER :

1. Revision petitioner/accused assails the judgment of conviction and order of sentence against him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short N.I. Act).

2. The parties shall be referred to as complainant and accused as before the trial court.

3. Complaint was filed alleging that on 20.5.2006, accused borrowed an amount of Rs. 15 lakhs from the complainant and in discharge of the said liability, accused issued Ext.P1 cheque dated 25.8.2006 drawn on UTI Bank Ltd. Tirupur. Upon presentation of Ext.P1 cheque for encashment, it was bounced due to insufficient funds in the account of the accused. Though the complainant caused to send Ext.P5 lawyer notice, it was returned as 'unclaimed'. Accused failed to pay the amount covered by Ext.P1 cheque and thereby committed the offence punishable under Section 138 of N.I.Act.

4. Accused pleaded not guilty to the accusation and denied issuance of Ext.P1 cheque in discharge of any debt or liability.

5. Before the trial court, PW1 and PW2 were examined and Exts.P1 to P6 were marked on the side of complainant. No defence evidence was adduced by the accused.

6. After trial, the learned Magistrate found the accused guilty under Section 138 of N.I.Act and he was convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 22,98,000/-. In default of payment of fine, to undergo simple imprisonment for three months. It was further directed that fine if realised shall be given to the complainant under Section 357(1)(b) Cr.P.C.

7. The appeal preferred by the accused as Crl.A.No.505/2012 was dismissed by the Sessions Court, Thrissur confirming the conviction and sentence under Section 138 of N.I. Act. In this revision, accused calls into question the conviction and sentence against him.

8. The learned counsel for the accused contended that complainant failed to prove that the accused borrowed an amount of Rs. 15 lakhs and issued Ext.P1 cheque in discharge of the said debt. The learned counsel further contended that since the complainant failed to prove the transaction, no presumption under Section 118(a) and 139 N.I.Act can be drawn and therefore the verdict of conviction and order of sentence against the accused for the offence under Section 138 N.I.Act is liable to be set aside by allowing the revision.

9. Per contra, the learned counsel for the complainant supported the findings of the learned Magistrate and learned Sessions Court and submitted that from the evidence adduced by the complainant, both oral and documentary, it stands established that on 20.5.2006 accused who is a relative of the complainant borrowed Rs. 15 lakhs and in discharge of the said liability, the accused issued Ext.P1 cheque. The learned counsel for the complainant placed reliance on the judgments rendered by the Hon'ble Apex Court in Bir Singh v. Mukesh Kumar, 2019 (1) KHC 774, K.N. Beena v. Muniyappan and Ors. (2001) 8 SCC 458, Laxmi Dyechem vs. State of Gujarat and Ors. (2012) 13 SCC 375 and contended that the presumption under Section 139 N.I Act entails an obligation on the court to presume that the cheque in question was issued by the drawer or accused in discharge of a debt or liability. It was contended by the learned counsel for the complainant that the onus to rebut the presumption under Section 139 of the N.I Act that the cheque has been issued in discharge of a liability is on the accused and in the case at hand accused has not rebutted the presumption.

10. It is not in dispute that Ext.P1 is a cheque issued from the account maintained by the accused with UTI Bank Ltd., Tirupur Branch. Accused would admit