Under S. 139 of the Negotiable Instruments Act, once the execution of a cheque is established, a rebuttable presumption of a legally enforceable debt arises, and mere suggestions by the accused without cogent evidence are insufficient to displace this presumption.

ORDER :

1. Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioner under Section 138 of the Negotiable Instruments Act (for short the "N.I. Act").

2. The revision petitioner is the accused in S.T. No. 728/2006 on the file of the Judicial First Class Magistrate Court-II, Hosdurg.

3. The case of the complainant is that the accused borrowed a sum of Rs. 2,00,000/- from the complainant and, in discharge of the said liability, issued a cheque dated 03.03.2006 for the said amount in the complainant's favour. However, upon presentation, the cheque was dishonoured for the reason "funds insufficient." Thereafter, the complainant issued a statutory notice dated 24.03.2006 to the accused, informing him of the dishonour and demanding payment of the cheque amount. Despite receipt of the notice on 27.03.2006, the accused neither paid the amount nor sent a reply. Hence, t he accused is alleged to have committed an offence punishable under Section 138 of the N.I. Act.

4. During the trial, the complainant was examined as PW1 and marked Exts.P1 to P4. On the side of the defence, DW1 and DW2 were examined. On an appreciation of the evidence on record, the trial court found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and convicted him. The accused was sentenced to undergo simple imprisonment for a period of six months and to pay an amount of Rs. 2,00,000/- to the complainant as compensation under section 357 (3) of Cr. P.C. In default of payment of the compensation, he was directed to undergo simple imprisonment for a further period of three months.

5. Aggrieved by the said judgment, the accused preferred Crl. A. No. 325 of 2008 before the Sessions Court, Kasaragod. The learned Sessions Judge, after hearing the appeal, partly allowed the same. While confirming the conviction, the appellate court modified the sentence by reducing the substantive sentence to simple imprisonment till the rising of the court. The direction to pay compensation and the default sentence were, however, confirmed.

6. Heard the learned counsel appearing for both sides and perused the records.

7. The learned counsel for the revision petitioner submitted that the present case is a foisted one and that no amount is due to the complainant as alleged. According to the learned counsel, both the trial court and the appellate court acted in a hasty manner in convicting the accused without properly appreciating the facts and evidence on record. It was further contended that the defence set up by the accused was not properly considered either by the trial court or the appellate court, resulting in the accused being wrongly convicted. Moreover, it was submitted that the evidence of the complainant regarding the alleged transaction and execution of Ext.P1 cheque is unreliable, and therefore, the trial court and the appellate court ought not to have placed reliance on such weak evidence to record a conviction against the accused.

8. Per contra, the learned counsel for the second respondent submitted that there is no ground to interfere with the concurrent findings of the trial court and the appellate court. According to the learned counsel, the complainant has successfully established the execution and issuance of Ext.P1 cheque. It was further submitted that once the execution of Ext.P1 cheque is proved, the statutory presumption under Section 139 of the Negotiable Instruments Act operates in favour of the complainant, and consequently, it is for the accused to rebu