The statutory presumption under Section 139 of the Negotiable Instruments Act applies when the accused fails to raise a probable defense or contest the existence of a legally enforceable debt or liability.

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 20.8.2019, passed by the learned Sessions Judge-cum-Special Judge (CBI) Shimla, District Shimla, H.P., in Criminal Appeal No. 29-T/10 of 2017, affirming the judgment of conviction and order of sentence dated 5.7.2017/4.9.2017, in criminal Case No. 253-3 of 2012, passed by the learned Additional Chief Judicial Magistrate, Theog, 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 two months and pay compensation to the tune of Rs. 5,80,000/- 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, Theog, stating therein that accused with a view to discharge his liability, issued cheque bearing No. 967431 dated 7.8.2012 (Ext.C-1) amounting to Rs. 4,00,000/-, drawn at UCO Bank Branch Kotkhai, 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 5.7.2017/4.9.2017, 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 appeal before the learned first appellate Court, but same was dismissed vide judgment dated 20.8.2019. 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 27.9.2019, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing 50% of the compensation amount within a period of four weeks, however fact remains that aforesaid order never came to be complied with despite sufficient opportunity. On 25.8.2022, petitioner came present before this Court and stated that he is ready and willing to make the entire compensation amount awarded by the court below within three months and as such, this Court adjourned the matter for 5.12.2022, however fact remains that even on that day also, petitioner accused failed to make the payment good and by way of indulgence, this Court adjourned the matter for today’s date.

6. Since today petitioner accused has neither come present nor has complied with order dated 27.9.2019, this Court has no option but to decide the petition on its own merits. Mr. Rajeshwar Thakur, learned counsel appearing for the petitioner-accused submits 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.

7. Having perused material available on record, especially evidence led on record by the respective parties, this Court is not persuaded to agree with Mr. Rajeshwar Thakur, 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.

8. In the case at hand, at no point of time, petitioner disputed the factum with regard to his havi