The burden of proof shifts to the accused under Section 139 of the Negotiable Instruments Act when the existence of a legally enforceable debt is accepted.

Chander Bhusan Barowalia, J.

1. The present Criminal Revision Petition under Section 397 read with Section 401 of the Code of Criminal Procedure, is maintained against the judgment dated 21.6.2013, passed by learned Sessions Judge, (Forests) Shimla, in Criminal Appeal No. 2-S/10 of 13/10, dismissing the appeal of the petitioner and confirming the judgment of conviction and sentence passed by learned Judicial Magistrate 1st Class, Court No. I, Shimla, District Shimla, in Case No. 144/3 of 2008, dated 8.6.2010, whereby the petitioner was convicted and sentenced to suffer rigorous imprisonment for a period of one year for the offence punishable under Section 138 of the Negotiable Instruments Act and to pay compensation to the tune of Rs. 16,00,000/- to the complainant.

2. The key facts, giving rise to the present petition are that the complainant/respondent (hereinafter referred to as the ‘complainant’) maintained the complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘Act’) against the accused/petitioner (hereinafter referred to as the ‘accused’). As per the complainant, on 31.5.2007, accused being Branch Manager of H.P. State Co-operative Bank Ltd. Taklech Branch, had unlawfully transferred a sum of Rs. 22,96,000/- from the account of complainant to the account of Ram Kumar, without the consent and written request of the complainant and when the complainant confronted the accused qua his illegal transfer of amount from his account, he admitted transfer of such amount and assured the complainant to repay the amount. The accused issued cheque bearing Nos. 5555559 dated 6.11.2007, amounting to Rs. 12,00,000/- in favour of the complainant in discharge of his aforesaid liability against his account in the same Bank i.e. H.P. State Co-Operative Bank Ltd. Taklech Branch. The said cheque was presented and was dishonoured with the remarks ‘Exceeds Arrangements’. The accused was issued legal notice dated 26.5.2008, Ex.CW1/D, to pay the cheque amount, however, despite receipt of notice, accused failed to make the payment of cheque amount. Hence, the complaint was maintained before the learned Trial Court under the aforesaid Section to proceed against the accused.

3. Mr. R.K. Bawa, learned Senior Counsel appearing on behalf of the accused has argued that the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court is without appreciating the facts, which have come on record to its true perspective. He has argued that the learned Trial Court has failed to take into consideration the fact that the cheque was issued as a security and there was no consideration for issuance of cheque ignoring all these aspects, so the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court is required to be set aside. He has further argued that even the holder of FDRs, Ram Kumar, has stated before the learned Magistrate that FDRs do not belong to him. He has argued that it is for the Bank to return the FDRs to the complainant and so, the accused cannot be held guilty.

4. On the other hand, Mr. Ashwani Pathak, learned Senior Counsel appearing on behalf of the complainant has vehemently argued that under Section 138 of the Negotiable Instruments Act, there is a presumption in favour of the holder of the cheque. The cheque was issued for consideration, as the accused has taken away money from the Bank account of the complainant and prepared the FDRs in the name of some other person, which other person used, as a security with the Government for obtaining the contract from the PWD authorities, when this came to the notice of complainant, accused issued cheque to the complainant for returning the amount. He has further argued that the cheque was issued for consideration, but for the sake of arguments, even if it is taken that the cheque was issued, as a security then also it is enforceable and it is for consideratio