The burden of proof lies on the accused to establish a defense in cases of dishonour of cheques under Section 138 of the N.I. Act.

JUDGMENT

Ajay Mohan Goel, J. —By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Additional Sessions Judge (II), Mandi, District Mandi in Cr. Appeal No. 12/2010 dated 1.5.2015, vide which learned appellate court while dismissing the appeal filed by the present petitioner has upheld the judgment passed by the Court of learned Chief Judicial Magistrate, Mandi in Criminal Case No. 128-II/2007 dated 4.1.2010, whereby learned trial court had convicted the accused for commission of offence punishable under Section 138 of the Negotiable Instruments Act (in short "N.I. Act") and sentenced him to undergo simple imprisonment for a period of six months and also to pay cheque amount to the complainant as compensation.

2. Brief facts necessary for adjudication of the present case are that respondent/complainant (hereinafter referred to as "complainant-Society") filed a complaint under Section 138 of the N.I. Act before learned trial court on the ground that the complainant-Society was dealing in banking and had Branches at various places in District Mandi and that an amount of Rs. 46,000/- was advanced to the accused by the complainant-Society which the accused had agreed to repay by way of monthly instalments of Rs. 1200/- + interest. As per the complainant-Society, accused had issued cheque Ext. CW1/B towards discharge of his liability to the complainant-Society dated 15.9.2007 drawn on Bank of Baroda, Mandi Branch for an amount of Rs. 46,000/-. Complainant-Society had deposited the said cheque in their bank i.e. UCO Bank on 18.9.2007 and thereafter on clearing from Bank of Baroda, the said cheque was returned back to the complainant-Society on account of "insufficient Funds" in the account of the accused. Further as per the complainant-Society, thereafter legal notice was served upon the accused dated 16.10.2007 which was returned back undelivered to the sender vide endorsement that "addressee was not available". It was the case of the complainant-Society that the accused had intentionally issued the aforesaid cheque with an ulterior motive to deceive the complainant-Society knowing-fully well that the cheque would not be honoured on its presentation. On these bases, complainant-Society filed complaint for punishing the accused under the provisions of N.I. Act.

3. As a prima face case was found against the accused, notice of accusation was accordingly put to him for commission of offence punishable under Section 138 of the N.I. Act to which he pleaded not guilty and claimed trial.

4. In order to prove its case, complainant examined its Branch Manager CW-1 Kiran Prakash as well as CW2 Ramesh Kumar Postal Assistant Head Office. Complainant-Society examined CW3 Smt. Krishna Devi Cash Clerk of the banker of the accused to demonstrate that the cheque drawn upon by the accused was dishonoured on account of insufficient funds.

5. In his statement recorded under Section 313 Cr.P.C. accused admitted that he had raised loan from the complainant-Society and he also admitted the factum of having issued the cheque in favour of the complainant-Society to discharge his duty. However, when he entered the witness box as DW-1 he stated that the said cheque was got executed from him by the complainant-Society under pressure.

6. Learned trial court on the basis of evidence placed on record by the complainant-Society held that it stood proved on record that the accused had raised loan from the complainant-Society and in order to discharge his liability he (accused) had issued cheque Ext.CW1/B to the bank which cheque was dishonoured on account of insufficient funds in the account of the accused. Learned trial court further held that it stood proved from the record that thereafter a legal demand notice dated 16.10.2007 was issued to the accused and records demonstrated that complete and permanent address of the accused was mentioned on the registered envelope and postman visited the house of the accused