A cheque issued for a financial obligation creates a rebuttable presumption of debt under Sections 138 and 139 of the N.I. Act, which the accused failed to contradict.

ORDER :

M.B. SNEHALATHA, J.

Revision petitioner is the accused in S.T.C.No.2227/2008 on the file of Judicial First Class Magistrate Court I, Kannur and he is the appellant in Crl.A No.101/2012 of Sessions Court, Thalassery. He was convicted and sentenced for the offence punishable under Section 138 of the Negotiable Instruments Act (for short N.I Act). Aggrieved by the judgment of conviction and sentence, accused has preferred this revision petition.

2. The parties shall be referred to as complainant and accused.

3. The complainant-the 'Kerala Vyapari Vyavasayi Ekopanasamithi', Kannur District Committee, represented by its President laid the complaint stating that the accused, who is a member of the said association, availed a financial facility of Rs.3 lakhs from its mutual benefit fund scheme and in discharge of the amount due in the said transaction, accused issued Ext.P1 cheque to the complainant. Though the complainant presented Ext.P1 cheque for collection, it was returned dishonoured due to insufficient funds in the account of the accused. In spite of receipt of Ext.P4 lawyer notice, accused failed to pay the amount covered by Ext.P1 cheque and thereby committed the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘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 was examined on the side of the complainant and Exts.P1 to P9 were marked. 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. The appeal preferred by the accused as Crl.A No.101/2012 was dismissed by the Sessions Court confirming the conviction under Section 138 of N.I. Act. The substantive sentence of four months of imprisonment awarded by the trial court was modified by the appellate court to imprisonment till the rising of the court. The direction by the trial to pay Rs.2,40,000/- to the complainant as compensation under Section 357(3) Cr.P.C. was confirmed in appeal.

7. The point for consideration is whether the impugned judgment of conviction and sentence needs any interference by this Court. Undisputably Ext.P1 is a cheque issued from the account maintained by the accused at North Malabar Gramin Bank, Kuthuparamba Branch. According to PW1, who is the District President of the complainant association, accused who was a member of the said association and who was a subscriber of the mutual benefit fund scheme of the complainant association had availed a financial assistance of Rs.3 lakhs from the complainant association. Ext.P8 is the loan application and Ext.P9 is the bond executed by the accused. Further version of PW1 is that the accused committed default in repaying the installments and an amount of Rs.2,40,000/- was due from the accused in the said transaction. The specific version of PW1 is that towards the said liability, the accused issued Ext.P1 cheque for Rs.2,40,000/- drawn on North Malabar Gramin Bank, Kuthuparamba Branch. When Ext.P1 cheque was presented for collection, it was returned dishonoured due to insufficient funds in the account of the accused. Exts.P2 and P3 are the memos issued from the bank. The complainant caused to send Ext.P4 lawyer notice to the accused and the accused accepted the notice. Ext.P6 is the acknowledgment card. According to PW1, in spite of receipt of Ext.P4 lawyer notice, accused neither sent any reply nor paid the amount covered by Ext.P1 cheque.

8. The argument advanced by the learned counsel for the accused that since the complainant failed to produce the accounts relating to the alleged financial transaction, the case of the complainant has to be disbelieved, is untenable. It is to be b