Admission of cheque signature triggers Section 139 presumption of liability; accused must rebut by preponderance of probabilities with probable defence. Revisional court limited to correcting perversity, not reappreciating evidence.

JUDGMENT :

Rakesh Kainthla, J.

The present revision is directed against the judgment dated 03.07.2024, passed by learned Sessions Judge, Mandi, District Mandi, H.P. (learned Appellate Court) vide which the appeal filed by the petitioner (accused before learned Trial Court) was dismissed and the judgment of conviction and order of sentence dated 21.12.2023, passed by learned Judicial Magistrate, First Class, Court No.III, Mandi, District Mandi, H.P. (learned Trial Court), were upheld. (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 petition are that the complainant filed a complaint against the accused 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 is the proprietor of Mittal Traders, Ner Chowk. He had supplied articles to the accused worth Rs.90,000/- on credit basis. The accused issued a cheque for Rs.90,000/- drawn on Punjab National Bank, Ner Chowk, Mandi, to discharge his liability. The complainant presented the cheque to Punjab National Bank, Ner Chowk, on 26.03.2013; however, the cheque was dishonoured by the bank on the same day with an endorsement ‘funds insufficient’. The complainant issued a legal notice dated 17.04.2013, which was duly served upon the accused; however, the accused failed to repay the amount despite receipt of a valid notice of demand. Therefore, a complaint was filed before the learned Trial Court for taking action as per law.

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 NI Act, to which he pleaded not guilty and claimed to be tried.

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

5. The accused, in his statement recorded under Section 313 of CrPC, asserted that he and the complainant were on friendly terms. The complainant used to visit his house. He had kept the cheque in the house. The cheque bore his signature. There was some dispute between the family of the complainant and the accused. He was not liable to make payment. He examined himself (DW-1) to prove his defence.

6. Learned Trial Court held that the accused admitted his signatures on the cheque; therefore, a presumption arose that the cheque was issued for consideration to discharge the liability. The burden shifted upon the accused to rebut the presumption. The evidence of the accused was not sufficient to rebut the presumption. The cheque was dishonoured with an endorsement ‘funds insufficient’. The notice was duly served upon the accused, but he failed to repay the amount. Hence, the accused was convicted for the commission of an offence punishable under Section 138 of the NI Act and was sentenced to undergo simple imprisonment for two months, pay a fine of Rs.1,60,000/- and in default of payment of fine, to undergo further simple imprisonment for 15 days. It was also ordered that the fine amount shall be given to the complainant as compens