In a prosecution under Section 138 of the NI Act, once the execution of a cheque is admitted or proven, a presumption under Section 139 arises in favour of the complainant, and the burden shifts to the accused to rebut it through cogent evidence, not mere assertion.

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 “N.I. Act”).

2. The revision petitioner is the accused in C.C. No. 96 of 2009 on the file of the Judicial First Class Magistrate Court–II, Vaikom.

3. The case of the complainant is that the accused, in discharge of her liability to the complainant, issued a cheque dated 03.11.2008 for Rs.3,00,000/- drawn on her account maintained with Union Bank of India, Vaikom Branch, in favour of the complainant. Upon presentation, the cheque was dishonoured on 16.02.2009 for insufficiency of funds. The complainant issued a statutory notice dated 17.02.2009 demanding payment of the cheque amount. Despite receipt of the notice, the accused failed to make payment. Hence, the 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. The documents produced on the side of the complainant were marked as Exts. P1 to P5. On the side of the defence, DW1 was examined and Exts. D1 to D5 were marked.

5. On appreciation of the evidence on record, the trial court found the accused guilty of the offence punishable under Section 138 of the N.I. Act and convicted her. The accused was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.3,00,000/-. In default of payment of the fine, the accused was directed to undergo simple imprisonment for a period of one month.

6. Aggrieved by the said judgment, the accused preferred Crl.A. No. 191 of 2011 before the Sessions Court, Kottayam. Teh learned Additional Sessions Judge-V, Kottayam, who heard the appeal, allowed the same in part. While confirming the conviction, the appellate court modified the sentence and directed the accused to undergo imprisonment till the rising of the court and to pay a sum of Rs.3,00,000/- as compensation to the complainant under Section 357(3) of the Code of Criminal Procedure. In default of payment of the compensation, the accused was sentenced to undergo simple imprisonment for one month. Aggrieved thereby, the revision petition has been filed.

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

8. The learned counsel for the revision petitioner submitted that both the trial court and the appellate court erred in appreciating the evidence in its proper perspective and hastily convicted the accused. According to the learned counsel, the complainant failed to prove the transaction alleged in the case as well as the execution of Ext. P1 cheque. It is further submitted that the source of funds allegedly advanced by the complainant has also not been proved. It is therefore urged that the revision petitioner is entitled to be acquitted. 9. Per contra, the learned counsel for the 2nd respondent submitted that there is ample evidence to prove the transaction alleged in the case as well as the execution of Ext. P1 cheque, and therefore the presumption under Section 139 of the N.I. Act would operate in favour of the complainant. It is further contended that once such a presumption arises, the burden shifts to the accused to rebut the same by adducing cogent and convincing evidence or materials. However, no materials have been adduced by the accused to displace the said presumption. According to the learned counsel, no interference is therefore required in the impugned judgment.

10. Before entering into a discussion regarding the rival contentions, it is relevant