The burden of proof to rebut the presumption under Sections 118 and 139 of the Negotiable Instruments Act lies on the accused, who must provide evidence contesting the existence of consideration and debt.

JUDGMENT

Tarlok Singh Chauhan, J. - This Criminal Revision is directed against the judgment passed by learned Sessions Judge, Kullu on 31.10.2018 whereby he affirmed the judgment of conviction as passed by learned Judicial Magistrate 1st Class, Manali, District Kullu, sentencing and convicting the petitioner/accused (hereinafter referred to as ''the accused'') to undergo simple imprisonment for a period of seven months for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ''Act'') and to pay a lumpsum compensation of Rs.1,25,000/- to the respondent/ complainant (hereinafter referred to as ''the complainant'').

The parties shall be referred to as the accused and the complainant.

2. Brief facts giving rise to the present revision petition are that both, the complainant and the accused, were known to each other. On 30.9.2010 the accused borrowed a sum of Rs.1,00,000/- from the complainant and on the same day executed a pronote in his own handwriting in favour of the complainant. Thereafter, on 11.12.2012, the accused in discharge of his liability, issued and handed over a cheque bearing No. 006580 amounting to Rs.1,00,000/- in favour of the complainant, drawn at Bank of India, Branch Office, Manali. The complainant presented the cheque in the bank for encashment, but the same was dishonoured and returned to the complainant with the remarks "Funds Insufficient" as per memo dated 13.12.2012. This led to issuance of legal notice by the complainant on 18.12.2012 to the accused demanding payment, but despite the receipt of the same, no payment was made by the accused. Hence, the complaint.

3. The learned trial Court after recording the preliminary evidence found sufficient reasons to summon the accused for the commission of the offence punishable under Section 138 of the Act and after appearance of the accused, notice of accusation was put to him for the commission of alleged offence, to which the accused pleaded not guilty and claimed to be tried.

4. The complainant in order to prove his case, examined himself as CW-1 and tendered in evidence his affidavits Ex.CW-1/A and Ex.CW-1/J, respectively, pronote Ex.CW-1/B, cheque Ex.CW-1/C, memo Ex.CW-1/D, bank slip Ex.CW-1/E, legal notice Ex.CW-1/F, postal receipt Ex.CW-1/G and acknowledgement Ex.CW-1/H and closed his evidence.

5. After the closure of the complainant''s evidence, the accused was examined under Section 313 Cr.P.C., wherein, he denied the case of the complainant in entirety. However, the accused did not lead any evidence in defence.

6. The learned trial Court convicted the accused, as aforesaid, and the said judgment of conviction in turn was upheld by the learned Sessions Judge, Kullu, constraining the accused to file the instant revision petition.

7. It is vehemently argued by Mr. Naveen K. Bhardwaj, learned counsel for the petitioner/accused that the findings recorded by the learned Courts below are perverse and, therefore, deserve to be set-aside and accused deserves to be honourably acquitted. Even though the respondent stood served, however, there is no appearance on his behalf.

I have heard learned counsel for the petitioner/accused and have also gone through the material that has come up on record.

8. At the out-set, Sections 118 and 139 of the Act, read as under

"118. Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made:-

(a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;

(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer that every transfer of a negotiable ins