The presumption of liability under Section 139 of the Negotiable Instruments Act is rebuttable, and the accused must provide evidence to counter it; failure to do so results in conviction.

JUDGMENT :

Rakesh Kainthla, J.

The present revision is directed against the judgment dated 21.04.2023, passed by learned Additional Sessions Judge Kullu, District Kullu, vide which the judgment and order passed by learned Judicial Magistrate, First Class, Banjar, District Kullu (learned Trial Court) were upheld. (Parties shall hereinafter bereferred 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 for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘NI Act’). It was asserted that the complainant and the accused were known to each other. The accused borrowed a sum of Rs.6,50,000/- from the complainant. The accused issued a cheque of Rs. 6,50,000/- drawn on the State Bank of India, Banjar to discharge his liability. The complainant presented the cheque before the Bank, but it was dishonoured with an endorsement ‘insufficient funds’. The complainant sent a notice to the accused asking him to pay the amount. The registered A.D. containing the notice was received unclaimed. The accused is deemed to be served. He failed to pay the amount despite the deemed service; hence, the complaint was filed to take action against the accused as per the law.

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

4. The complainant examined himself (CW1).

5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that he was known to the accused. He stated that there was a business transaction between him and the complainant. They used to hand over cheques to each other. He was not aware how the cheque reached the hands of the complainant in the present case. No evidence was produced despite having been granted sufficient opportunities; hence, the evidence was closed by the order of the Court on 12.10.2021.

6. Learned Trial Court held that the issuance of the cheque was not disputed. There is a presumption that the cheque was issued in discharge of the legal liability for valid consideration. The accused failed to rebut the presumption on the balance of probability. The cheque was dishonoured with an endorsement ‘funds insufficient’. Notice was sent to the accused and is deemed to be served. He failed to pay the amount despite the deemed receipt of the notice. Hence, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and was sentenced to undergo simple imprisonment for two months and to pay a compensation of Rs.8,00,000/-

7. Being aggrieved by the judgment and order passed by learned Trial Court, the accused filed an appeal, which was decided by learned Additional Sessions Judge, Kullu (learned Appellate Court). An application under Section 311 of Cr.P.C. was filed before the learned Appellate Court for summoning the additional evidence. Learned Appellate Court held that sufficient opportunities were granted to the accused to lead the evidence, and the plea taken in the application under Section 311 of Cr.P.C. that sufficient opportunities were not granted to the complainant is not correct. The learned Trial Court had rightly held that the cheque was issued in discharge of the legal liability, and the accused had failed to rebut the presumption contained in Section 139 of the NI Act. The cheque was dishonoured with an endorsement ‘funds insufficient’. The accused failed to pay the amount despite the deemed service of the notice, therefore, he was rightly convicted and sentenced by the learned Trial Court.Consequently, the appeal was dismissed.

8. Being aggrieved by the judgment passed by learned Courts below, the accused has filed the present