Presumption under NI Act S.139 arises on cheque issuance admission; rebuttable by preponderance via evidence, not S.313 statement. Security cheques liable if debt unpaid; 'account closed' dishonour and undelivered notice valid. Revision limited to perversity.

Judgment :

Rakesh Kainthla, J.

The present revision is directed against the judgment dated 04.12.2024 passed by learned Sessions Judge, Hamirpur (learned Appellate Court) vide which the judgment of conviction and order of sentence dated 27.06.2024 passed by learned Judicial Magistrate, First Class, Court No. III, Hamirpur, District Hamirpur, 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 before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the complainant and the accused had cordial relations with each other. The accused required some money for his domestic needs. He approached the complainant. The complainant advanced Rs. 1,50,000/- to the accused. The accused issued a cheque of Rs. 50,000/- drawn on Punjab National Bank, Bhota to the complainant to discharge part of his liability. The complainant presented the cheque to the bank, but it was dishonoured with the remarks 'account closed'. The complainant issued a legal notice to the accused but it was returned undelivered. Hence, the complaint was filed before the learned Trial Court for taking action as per the law.

3. 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).

5. The accused, in his statement recorded under Section 313 of CrPC, admitted that he had borrowed Rs. 1,50,000/- from the complainant. He stated that he had issued a security cheque at the time of taking the loan. He had repaid the amount in cash. He stated that he wanted to lead evidence in defence but failed to produce the evidence despite repeated adjournments. Hence, the evidence was closed on 20.05.2024.

6. Learned Trial Court held that the issuance of the cheque was not disputed, therefore, presumption under Section 118(a) and 139 would arise that the cheque was issued for consideration and in discharge of debt/liability. The burden would shift upon the accused to rebut the presumption. He failed to produce any evidence to rebut the presumption. The cheque was dishonoured with an endorsement 'account closed'. The complainant served a notice upon the accused, which was returned undelivered. This is treated as deemed service in law. The accused failed to repay the amount to the complainant. All the ingredients of commission of an offence punishable under Section 138 of the NI Act were duly satisfied. Consequently, the accused was convicted of the commission of an offence punishable under of the NI Act and was sentenced to undergo simple imprisonment for three months, pay a fine of Rs. 70,000/- and in default of payment of fine, to undergo additional 15 days simple imprisonment. It was further ordered that the amount of Rs. 68,000/- would be disbursed to the complainant as compensation.

7. Being aggrieved by