The accused's failure to repay the loan amount and the dishonour of the cheque led to the application of the statutory presumption under Ss.118 and 139 of the Negotiable Instruments Act, emphasizing the accused's burden to establish a probable defence and contest the existence of a legally enforceable debt or liability.

ORDER :

Instant criminal revision petition filed under S. 397/401 CrPC, is directed against judgment dated 29.6.2021 passed by learned Additional Sessions Judge, Sundernagar, District Mandi, Himachal Pradesh in Cr. Appeal No. 140/2015, affirming judgment of conviction and order of sentence dated 27.4.2015 passed by learned Additional Chief Judicial Magistrate, Court No.1, Sundernagar, District Mandi, in Cr. Complaint No. 113-I/2010/100-III/2010, titled State Bank of India v. Ramesh Kumar, whereby learned trial Court, while holding petitioner-accused (hereinafter, ‘accused’) guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, ‘Act’) ordered accused to undergo simple imprisonment for one year and pay Rs. 8,00,000/- as compensation to the respondent No.1-complainant (hereinafter, ‘complainant’) and in default of payment of compensation, to further undergo simple imprisonment for two months.

2. Precisely, the facts of the case, as emerge from the record, are that complainant instituted proceedings under S.138 of the Act in the competent court of law, alleging therein that for lawful consideration, accuse issued cheque bearing No. 478183, dated 26.4.2010, amounting to Rs. 5,50,000/- in favour of the complainant. However, facts remains that the aforesaid cheque on its presentation was dishonoured on account of insufficient funds. Since despite having received legal notice, accused failed to make payment of cheque amount, within the time stipulated in the legal notice, complainant instituted proceedings under S. 138 of the Act in the competent court of law, which subsequently on the basis of evidence adduced on record by the parties, held accused guilty of having committed offence punishable under S.138 of Act and convicted and sentenced him as per description given above.

3. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence recorded by learned trial Court accused preferred an appeal before learned Additional Sessions Judge Sundernagar, Mandi, which was dismissed on 29.6.2021. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal after setting aside judgments of conviction and order of sentence.

4. Vide order dated 3.9.2021 substantive sentence imposed upon the accused by learned trial Court was suspended subject to deposit of 15% of cheque amount within a period of four weeks. However, fact remains that the aforesaid amount was never paid by the accused, as a consequence of which, order dated 3.9.2021 came to be vacated on 22.12.2021, when despite there being last opportunity, 15% cheque amount and bail bonds of Rs. 25,000/- were not deposited/furnished by the accused. However, subsequently on 15.3.2022, this court on the vehement request of learned counsel for the petitioner, adjourned the matter for today’s date, enabling the accused to comply with the order dated 3.9.2021. However, learned counsel for the accused states that despite repeated communications, accused is not coming forward to impart instructions nor depositing amount as such, petition be heard on merit.

5. Having heard learned counsel for the parties and perused the record vis-à-vis judgments of conviction and order of sentence impugned in the instant proceedings, this court finds it difficult to agree with learned counsel for the accused that learned courts below have failed to appreciate evidence in its right perspective, rather, this court finds that learned court below have meticulously dealt with each and every aspect of the matter and despite there being sufficient opportunities, accused failed to repay the amount taken from the complainant as loan. Interestingly, in the case at hand, there is no denial on behalf of accused with regard to issuance of cheque and signatures thereupon. Accused has set up a case that Bank account was joint in his and name of his wife Smt. Asha Kumari, who was under obligation