The accused must raise a probable defense to rebut the presumption under S.139 of the Negotiable Instruments Act. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

JUDGMENT :

Sandeep Sharma, J.

By way of instant criminal revision petitions filed under S.397 read with S.401 CrPC, challenge has been laid to a common judgment dated 15.9.2018 passed by learned Sessions Judge (Forests) Shimla, Circuit Court at Theog, District Shimla, Himachal Pradesh in Cr. Appeal No. 5-T/10 of 2016, whereby appeal filed by the respondent-complainant (hereinafter, 'complainant') has been allowed and judgment/order of conviction and sentence dated 7.12.2015/15.12.2015 passed by learned Additional Chief Judicial Magistrate, Theog, in Case No. 79/3 of 2015 has been modified to the extent that instead of Rs.7.00 Lakh, petitioner-accused (hereinafter, 'accused') has been directed to pay Rs.8,50,000/- as compensation to the complainant, and, appeal filed by the accused for his acquittal has been dismissed.

2. Briefly stated the facts as emerge from the record are that the complainant instituted a complaint under S.138 of the Negotiable Instruments Act (hereinafter, 'Act') alleging therein that in the month of August/September, 2014, he sold 750 apple boxes to the accused who initially made payment of Rs.3.00 Lakh to the complainant, but for payment of balance amount, issued two cheques bearing Nos. 736046 dated 3.9.2014 amounting to Rs.3.00 Lakh and 736047 dated 8.9.2014 amounting to Rs.3,37,500/-, (Exts. CW-1/B and CW-1/D) drawn on State Bank of India, Theog, however, the fact remains that the aforesaid cheques on presentation to the Bank concerned were dishonoured on account of insufficient funds in the account of the accused. Immediately after receipt of memo from the Bank concerned, complainant served a demand notice (Ext. CW-1/F) to the accused calling upon him to make payment of the amount covered by cheques within the time stipulated in the notice. Since the accused failed to make the payment within the time prescribed in the legal notice, complainant was compelled to institute proceedings under S.138 of the Act against the accused. Learned trial Court, in the totality of evidence led on record by the parties, held accused guilty of having committed offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him to undergo simple imprisonment for two months and to pay a compensation of Rs.7.00 Lakh to the complainant.

3. Being aggrieved and dissatisfied with the judgment/order of conviction and sentence passed by learned trial Court, accused preferred an appeal i.e. Cr. Appeal No. 5- T/10 of 2016, whereas, complainant also filed Cr. Appeal No. 2- T/10 of 2016, for enhancement of the amount of compensation in the court of learned Sessions Judge, Shimla circuit court at Theog, who vide common judgment dated 15.9.2018, dismissed the appeal filed by the accused and allowed the appeal of the complainant, thereby enhancing the amount of compensation to Rs.8,50,000/- instead of Rs.7.00 Lakh and upheld rest of the judgment. In the aforesaid background, accused has approached this Court against the common judgment passed by learned lower appellate Court, seeking his acquittal.

4. Before adverting to the factual matrix of the case, it may be noticed that during the pendency of these petitions, learned counsel for the petitioner expressed willingness of the accused to settle the matter amicably and accordingly, on the request of accused, matter came to be repeatedly adjourned enabling him to make complete payment in terms of the judgment/order passed by learned trial Court. Bare perusal of order dated 1.8.2019 suggests that a sum of Rs.3.00 lakh came to be paid to the complainant during the pendency of the petitions, but thereafter, despite repeated adjournments, no amount ever came to be paid.

5. Today, during the proceedings of the case, learned senior counsel for the accused stated that he has no instructions, whatsoever, with regard to balance payment of the amount to be made by accused. He further stated that since the accused is not coming forward to impart instructions, this Court may proc