The importance of establishing a probable defense to contest the statutory presumption under Section 139 of the Negotiable Instruments Act.

JUDGMENT :

Sandeep Sharma, J.

Instant criminal revision petition filed under Section 397 of Cr.PC read with Section 401 Cr.PC, lays challenge to judgment dated 16.11.2021, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, Camp at Reckong Peo, in Criminal Appeal/CIS Case No. 08 of 2021, affirming judgment of conviction and order of sentence dated 11.7.2019, passed by the learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., whereby the learned trial Court while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 8,25,000/- to the complainant.

2. Precisely, the facts of the case, as emerge from the record are that respondent/complainant lodged complaint under Section 138 of the Act before the learned Additional Chief Judicial Magistrate Rampur, stating therein that he is a fruit commission agent and deals with purchase of packed apple boxes of different growers on commission basis and further sells the same to various Arties at Narkanda under the name and style of M/s RKC Narkanda. He alleged that in the apple season, accused purchased the consignment of apple boxes from him for a total consideration of Rs. 2.00 crores and out of the said amount, the accused made partial payments and issued cheques toward the balance consideration. He alleged that cheque bearing No. 354082 dated 15.4.2012 amounting to Rs. 8,00,000/- issued in his favour, on its presentation was dishonoured. He alleged that since accused failed to make the payment good within the stipulated period despite his having received legal notice issued to him, he had no option but to initiate proceedings under Section 138 of the Act in the competent court of law.

3. Complainant with a view to prove his case examined Shri Ranvir Singh as CW1 and adduced his evidence by way of affidavit Ext.CW1/A. This witness also tendered in evidence documents Ext.CW1/B to Ext.CW1/F. On the other hand, accused in his statement recorded under Section 313 Cr.PC denied the case of the complainant in toto and claimed himself to be innocent and examined one Sh. Hemant Kumar, official of APMC Rampur as DW1. He attempted to carve out a case that cheque in question was issued as security and same was mis-used.

4. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment dated 11.7.2019, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above.

5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, petitioner-accused appeal before the learned first appellate Court, but same was dismissed vide judgment dated 16.11.2021.

6. Vide order dated 10.5.2022, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing 50% of the cheque amount, however fact remains that aforesaid order never came to be complied with.

7. Today, during the proceedings of the case, learned counsel for the petitioner states that since petitioner is not coming forward to deposit 50% of the compensation amount in terms of previous orders passed by this Court, this Court may proceed to decide the petition on its own merits.

8. Having perused material available on record vis-à-vis reasoning assigned in the judgments impugned in the instant petition, this court finds no illegality and infirmity in the same, rather same appears to be based upon the proper appreciation of facts as well as law and as such, no interference is called for. Though in the instant case, petitioner while getting his statement recorded under Section 313 denied the case of the prosecution in toto, but while