The presumption under Sections 138 and 139 of the Negotiable Instruments Act mandates that once a cheque's issuance is admitted, it is presumed to be for a legally enforceable debt, shifting the burden to the accused to rebut this presumption.

JUDGMENT :

Rakesh Kainthla, J.

1. The present petition is directed against the judgment dated 29.03.2025, passed by learned Additional Sessions Judge (CBI Court), Shimla, H.P. (learned Appellate Court), vide which the judgment of conviction and order of sentence dated 11.09.2024 passed by learned Chief Judicial Magistrate, Shimla, H.P. (learned Trial Court) were upheld (Parties shall hereinafter berefered to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court, asserting that the accused approached the complainant for financial assistance in 2019. The complainant advanced a sum of Rs.12,60,000/- to the accused for three years. The complainant paid Rs.11,00,000/- to the accused through a cheque and Rs.1,60,000/- in cash. An agreement (Ex.CW1/K) was executed between the parties regarding this transaction on 31.10.2019. The accused issued two security cheques for Rs.1,60,000/- and Rs.11,00,000/- drawn on H.P. State Cooperative Bank Ltd., Sanjauli, District Shimla, H.P. It was agreed that the cheque would be presented in case of non-return of the loan. The accused failed to return the loan, and the complainant presented the cheque. However, the cheques were dishonoured with an endorsement “insufficient funds”. The complainant served legal notice (Ex.CW1/G) upon the accused, asking him to make the payment of the cheque amount within 15 days. The notice was served upon the accused, but he failed to pay the amount. Hence, the complaint was filed before the learned Trial Court to take action against the accused.

3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, the notice of accusation was put to him for the commission of an offence punishable under Section 138 of the Negotiable Instruments (NI) Act, to which he pleaded not guilty and claimed to be tried.

4. The complainant examined himself (CW1) to prove his case.

5. The accused, in his statement recorded under Section 313 of Cr.P.C., asserted that he had returned the amount taken by him from the complainant and the complainant misused the security cheques issued to him. He did not lead any defence.

6. Learned Trial Court held that the issuance of the cheques were not disputed. Therefore, a presumption arose that the cheques were issued for consideration in discharge of his legal liability. The accused was required to rebut the presumption. However, he did not present any evidence to rebut the presumption. His plea that he had returned the amount was not proved by any evidence. No suggestion was given to the complainant that the amount was returned. The cheques were dishonoured with endorsement “insufficient funds”. The complainant had issued a notice to the accused, which was served upon the accused. This was evident from the confirmation report (Ex. CW1/G) placed on record. All the ingredients of the commission of an offence punishable under Section 138 of the NI Act were duly satisfied. Hence, the accused was convicted for the commission of an offence punishable under Section 138 of the NI Act, and he was sentenced to undergo simple imprisonment for ‘six months’ and a fine of Rs.19,00,000/-, which was ordered to be paid as compensation to the complainant.

7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused preferred an appeal which was decided by the learned Additional Sessions Judge (CBI Court), Shimla (learned Appellate Court). Learned Appellate Court held that the statement of the complainant was reliable. The accused had not disputed the financial transaction between him and the complainant. He claimed that he had returned the amount in cash. However, he did not provide any evidence to establish this fact, and his plea regarding the payment of the amount was not believable. The signatures on the cheque were not disputed