The presumption of liability under Sections 138 and 139 of the Negotiable Instruments Act is rebuttable, placing the burden on the accused to prove otherwise.

JUDGMENT :

Rakesh Kainthla, J.

The present revision is directed against the judgment dated 25.5.2023, passed by learned Sessions Judge, Kullu, District Kullu, H.P. (learned Appellate Court), vide which the judgment of conviction and order of sentence dated 9.9.2022, passed by learned Judicial Magistrate First Class, Manali, District Kullu, H.P. (learned Trial Court) was upheld and the appeal filed by the petitioner (accused before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred 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 revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the parties were known to each other. The accused needed money, and he approached the complainant in June 2015. The accused agreed to sell his land measuring 0-01-61 hectares, being 161/2310 share comprised in Khasra No. 475, situated at Mohal Karasu, to the complainant for a total consideration of Rs.8.00 lacs. An agreement to sell was executed between the parties. The accused received an amount of Rs.1.00 lac in cash and Rs.5.00 lac by way of cheque. It was agreed that the balance amount would be paid on or before 15.9.2015 at the time of execution of the sale deed, however, the accused failed to execute the sale deed in favour of the complainant. He extended the date of execution of the sale deed till 15.3.2016. The accused again failed to execute the sale deed on that day, and the time was extended till 31.10.2016 and thereafter till 17.12.2016. The accused received Rs.60,000/- on 11.11.2016 from the complainant and agreed to execute the sale deed on 17.12.2016. The complainant visited the Tehsil office on 17.12.2016 for the registration of the sale deed, however, the accused did not visit the office. The complainant requested the accused to execute the sale deed or to return the money given to him as an advance. The accused issued a cheque of Rs.6.00 lacs drawn on Kangra Central Cooperative Bank to discharge part of his liability. The complainant presented the cheque before his bank, however, the cheque was dishonoured with an endorsement ‘funds insufficient’ vide memo dated 17.11.2017. The complainant sent a registered notice to the accused asking him to pay the amount within 15 days from the date of receipt of the notice. This notice was duly served upon the accused, but the accused failed to pay the amount despite a valid notice of demand. Hence, the complaint was filed before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act).

3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, notice of accusation was put to him, to which he pleaded not guilty and claimed to be tried.

4. The complainant examined herself (CW1) in support of her complaint. The accused, in his statement recorded under Section 313 of Cr.P.C., stated that he had taken a loan of Rs.1.00 lac and handed over a blank cheque. He had returned Rs.1.00 lac to the complainant. He examined Vinod Kumar (DW1).

5. Learned Trial Court held that issuance of the cheque was not in dispute. The accused failed to rebut the presumption of consideration attached to the cheque by leading any satisfactory evidence. The version of the complainant was duly proved by the Agreement to Sell executed between the parties. The cheque was dishonoured due to insufficient funds, and the accused failed to pay the amount despite receipt of a valid notice of demand. The defence witness only proved that the accused had withdrawn Rs.1.00 lac from his account in 2013, whereas the present transaction relates to the year 2016. The withdrawal of the amount is not connected to the present transaction. He