The presumption under Section 139 of the Negotiable Instruments Act mandates that a cheque is presumed to be issued for discharging a debt unless the accused proves otherwise.

Judgment :

(Rakesh Kainthla, J.)

The petitioner has filed the present revision petition against the judgment dated 27.02.2023 passed by the learned Additional Sessions Judge, Sundernagar, District Mandi, H.P. (learned Appellate Court) vide which the judgment of conviction dated 01.06.2022 and order of sentence dated 13.07.2022, passed by the learned Judicial Magistrate First Class, Court No. II, Sundernagar, District Mandi, H.P. (learned Trial Court) were upheld. (The 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 for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (for short N.I. Act). It was asserted that the accused issued a cheque of Rs.20,000/- in favour of the complainant to discharge his legal liability. The complainant presented the cheque to his bank, but it was dishonoured with the remark ‘payment stopped by the drawer’. The complainant issued a notice asking the accused to pay the amount within 15 days of the receipt of the legal notice. The notice was duly served upon the accused, but the accused failed to pay the amount. Hence, the complainant filed a complaint 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, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the N.I. Act, to which he pleaded not guilty and claimed to be tried.

4. The complainant examined himself (CW-1) to prove his case.

5. The accused, in his statement recorded under Section 313 of Cr.p.c., denied the complainant’s case in its entirety. He stated that he had no transaction with the complainant. He had issued a reply to the complainant’s notice. He is not to pay any money to the complainant. He had a transaction with Surinder Kumar, who is employed as a Safai Karamchari in Bhakra Beas Management Board, Sundar Nagar. He (Surinder) had taken blank security cheques from the accused. He (the accused) returned the money taken from Surinder. When the accused demanded his security cheques from Surinder, he (Surinder) replied that he had shifted his house and that he would return the cheque within one week. When the accused went to the house of Surinder, Lekhraj, Hemant Kumar and Happy were present in the house. They gave beatings to the accused. They threatened to beat the accused by the Gundas if the matter was reported to the police. Surinder Kumar is the father-in-law of the complainant. The accused had paid the money in the presence of the witnesses. He examined himself (DW-1) and Gulab Singh (DW-2) in his defence.

6. The learned Trial Court held that the cheque carried with it a presumption of consideration, and the burden shifted upon the accused to disprove the presumption. His plea that the cheque was issued by him as security to Surinder Kumar was not established. The cheque was dishonoured with the remark ‘payment stopped by the drawer’. The notice was duly served upon the accused. The accused failed to pay the amount. Hence, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and sentenced to undergo rigorous imprisonment for three months, pay a fine of Rs.20,000/- and in default of the payment of the fine to undergo further simple imprisonment for one month.

7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Appellate Court. Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the cheque carried with it a presumption of consideration and the burden was upon the accused to rebut the presumption. The plea taken by the accused that he had issued