The judgment established the importance of the accused's obligation to bring forth evidence to rebut the statutory presumption under Section 139 of the Negotiable Instruments Act and highlighted the different standard of proof for the accused in a criminal trial.

JUDGMENT :

Sandeep Sharma, J.

Instant criminal revision petition filed under Section 397(1) of Cr.PC read with Section 401 Cr.PC, lays challenge to judgment dated 1.11.2021, passed by the learned Sessions Judge Shimla, District Shimla, H.P., in Criminal Appeal No. 37/2021, affirming the judgment of conviction and order of sentence dated 8/30.4.2021, in criminal Case No. 250-3 of 2016, passed by the learned JMFC-5, 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.70,000/- 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 JMFC, Shimla, stating therein that accused with a view to discharge his liability, issued cheque bearing No. 561714 dated 20.4.2016 amounting to Rs.40,000/-, drawn at Punjab and Sindh Bank Sanjauli, Shimla, H.P., but fact remains that aforesaid cheque on its presentation to the bank concerned, was dishonoured. Since accused failed to make the payment good within the stipulated period despite his having received legal notice issued to him, complainant had no option but to initiate proceedings under Section 138 of the Act in the competent court of law.

3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 8/30.4.2021, 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.

4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, petitioner-accused preferred an appeal before the learned first appellate Court, but same was dismissed vide judgment dated 1.11.2021. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein to setaside the judgment of conviction and order of sentence recorded by the court below.

5. Vide order dated 16.3.2022, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing the compensation amount within a period of four weeks, however fact remains that aforesaid order never came to be complied with despite sufficient opportunity. Today, Mr. Mohar Singh, learned counsel appearing for the petitioner-accused submitted that despite repeated communications, petitioner is not coming forward to impart instructions and as such, this Court may proceed to decide the petition on its own merits.

6. Having perused material available on record, especially evidence led on record by the respective parties, this Court is not persuaded to agree with learned counsel for the petitioner that courts below have not appreciated the evidence in its right perspective, rather same being based upon the proper appreciation of facts as well as law calls for no interference.

7. In the case at hand there is no denial, if any, on the part of the petitioner-accused with regard to issuance of cheque in question as well as his signature thereupon. Since there is no dispute, if any, with regard to issuance of cheque as well as signature thereupon of petitioner, presumption as available under Sections 118 and 139 of the Act comes into play, which clearly provides that there is presumption available in favour of the holder of the cheque that same was issued in discharge of the lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence. Probable defence could be raised by the accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the