The accused must raise a probable defense to contest the existence of a legally enforceable debt or liability in cases of cheque dishonour under Section 138 of the Negotiable Instruments Act, failing which the statutory presumption under Section 139 comes into play.

ORDER :

Being aggrieved and dissatisfied with the judgment dated 12.07.2017, passed by learned Additional Sessions Judge, Kullu, H.P., in Cr. Appeal No.28 of 2017, titled Kehar Singh vs. Manju Banga, affirming the judgment of conviction and order of sentence dated 18.01.2017 passed by learned Additional Chief Judicial Magistrate, Kullu, District Kullu, in Cr. Complaint No. 877-1/2013/525-1/2015 (old), 471-1/2016/13/471-III/2016/13(new), titled Manju Banga vs. Kehar Singh, whereby court below while holding petitioner-accused (hereinafter referred to as ‘accused’) guilty of having committed offence punishable under Section 138 of Negotiable Instruments Act, (hereinafter referred to as ‘Act’) convicted and sentenced him to undergo simple imprisonment for a period of three months and to pay compensation of Rs. 2,50,000/- to the complainant and in default of payment of compensation, to further undergo simple imprisonment of one month.

2. Precisely, the facts as emerge from the record are that respondent-complainant (hereinafter referred to as ‘complainant’) instituted complaint under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Kullu, District Kullu, stating therein that she is proprietor of M/s Pawan Putra Steels, Banga Trading Company, Dhalpur, Kullu and accused was known to her and they were having cordial relations with each other. Complainant alleged that accused purchased steel/saria from her shop worth Rs.2,00,000/- and with a view to discharge aforesaid liability, issued cheque Ext.CB. However, fact remains that aforesaid cheque on its presentation to the bank concerned was dishonoured on account of ‘insufficient funds’, vide Ext. C-C. After having received memo from the bank concerned, complainant issued a legal notice Ext.CD to the accused calling upon him to make the payment good within stipulated time, but since he failed to do the same, complainant was compelled to institute complaint under Section 138 of the Act. Trial Court on the basis of pleadings as well as evidence adduced on record by respective parties, held accused guilty of offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him as per description given hereinabove. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence dated 18.01.2017, accused preferred an appeal in the court of learned Additional Sessions Judge, Kullu, District Kullu H.P., which also came to be dismissed vide judgment dated 12.07.2017. In the aforesaid background, accused has approached this Court in the instant proceedings filed under Section 397 read with Section 401 of Cr.P.C, 1973, praying therein for his acquittal after setting aside the judgments of conviction and order of sentence passed by courts below.

3. Vide order dated 18.09.2017, this Court while suspending substantive sentence imposed by court below, directed accused to deposit 50% of compensation amount within a period of six weeks, however, fact remains that aforesaid order passed by this Court, never came to be complied with despite repeated opportunities and as such, this Court has no option, but to decide the instant petition on its own merits.

4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that though accused has denied issuance of cheque, but he has nowhere disputed his signatures on the same. Complainant with a view to prove her case, tendered her affidavit Ext. CW-1/A in evidence, wherein, she deposed that accused purchased steel/saria from her shop, i.e. M/s Pawan Putra Steels, Banga Trading Company, Dhalpur, Kullu, worth Rs. 2,00,000/- and in order to discharge said liability, issued cheque Ext.CB. However, such cheque on its presentation was dishonored with an endorsement on memo, i.e. ‘insufficient funds’. She also stated that after having received memo from the bank concerned, her counsel issued legal notice to accused, which w