NI Act s.139 presumption rebutted by evidence of prior unpaid loans, pending litigations, and improbability of further advance; revisional jurisdiction under CrPC s.397 limited to perversity or ignored material, allowing acquittal on reappraisal showing miscarriage.

JUDGMENT :

RAKESH KAINTHLA, J.

The present revision is directed against the judgment dated 11.01.2024, passed by learned Sessions Judge, Una, District Una, H.P. (learned Appellate Court) vide which the judgment of conviction dated 28.07.2023 and order of sentence dated 31.07.2023 passed by learned Additional Chief Judicial Magistrate, Court No.1, Una, District Una, HP. (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 relationship between the parties was cordial. The accused demanded Rs. 8,00,000/- from the complainant; however, the complainant was unable to lend Rs. 8,00,000/-, and she advanced Rs. 5,00,000/- to the accused after repeated requests. The accused again borrowed Rs. 5,00,000/- after one month from the complainant. Accused issued cheque of Rs. 5,00,000 on 31.12.2020 to discharge her liability. The complainant presented the cheque to her bank, but it was dishonoured with the endorsement “insufficient funds”. The complainant informed the accused about the dishonour of the cheque, and she promised to arrange the money. She asked the complainant to present the cheque again. The complainant presented the cheque of Rs. 5,00,000/- on 02.03.2021, but it was dishonoured with endorsement “insufficient funds”. The complainant served a legal notice upon the accused asking her to repay the amount within 15 days of the receipt of the notice. The accused failed to repay the amount. Hence, the 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 her for the commission of an offence punishable under Section 138 of the NI Act, to which she pleaded not guilty and claimed to be tried.

4. The complainant examined Vinod Kumar (CW1) to prove her complaint.

5. The accused, in her statement recorded under Section 313 of CrPC, denied the complainant’s case. She stated that she did not know the complainant. She admitted that the cheque was issued by her and bears her signature. She stated that she had paid Rs. 5,00,000 to the complainant in another complaint along with expenses. She had replied to the legal notice. She tendered documents in her defence.

6. Learned Trial Court held that the accused admitted the issuance of the cheque and her signature on it; therefore, a presumption would be attached to the cheque that it was issued for consideration to discharge the liability. The accused did not explain the circumstances under which the cheque drawn on her account and signed by her came into possession of the complainant. She had not stopped the payment of the cheque or reported the matter to the police. She admitted that parties had different financial transactions, which falsifies the plea taken by her that she did not know the complainant. The accused claimed that she had sent a reply to the notice, but did not place the reply on record. All the ingredients of the commission of an offen