Presumption under NI Act s.139 rebuttable on preponderance of probabilities by probable defence; mere denial insufficient. Complainant need not prove financial capacity unless challenged in demand notice reply. Registered post to correct address suffices for notice service.

JUDGMENT :

Sushil Kukreja, J.

The present revision petition has been preferred by the petitioner-accused (hereinafter referred to as ‘the accused’) under Sections 397 read with Section 401 of the Code of Criminal Procedure (Cr.P.C.) against the judgment dated 24.08.2022, passed by the learned Sessions Judge, Hamirpur,, H.P., in Criminal Appeal No.17 of 2021, whereby the appeal filed by the accused against the judgment of conviction dated 15.03.2021 and order of sentence dated 18.03.2021, passed by the learned Additional Chief Judicial Magistrate, Court No.1, Hamirpur, H.P., in Complaint No.49-III-15, titled Bhagwan Dass vs. Amarjeet Mankotia, were upheld and the appeal filed by the accused was dismissed.

2. Facts of the case, in brief, as emerge from the record, are that the accused had issued a cheque bearing No.388575, dated 15.05.2015, amounting to Rs.5,50,000/- in favour of the complainant in order to discharge his legally enforceable liability and when the said cheque was presented in the bank, it was dishonoured with the remarks ‘funds insufficient’, vide memo dated 24.07.2015. Thereafter, the complainant served a legal notice dated 27.07.2015 upon the accused, demanding the payment of the cheque amount within the stipulated period, however, when no payment was made, he filed a complaint under Section 138 of the Negotiable Instruments Act (for short, ‘NI Act) before the learned trial Court.

3. The learned trial Court, after having found the accused guilty, convicted him for the offence punishable under Section 138 of NI Act, vide judgment of conviction dated 15.03.2021 and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation to the tune of Rs.8,00,000/-, vide order dated 18.03.2015. Aggrieved against the aforesaid judgment of conviction and order of sentence, the accused preferred an appeal before the learned lower Appellate Court, which was dismissed, vide judgment dated 24.08.2022.

4. Being aggrieved and dissatisfied with the impugned judgment dated 24.08.2022, the petitioner-accused preferred the instant revision petition.

5. Learned counsel for the petitioner-accused contended that the judgments passed by both the Courts below are against the law and facts as the same are result of mis- appreciation of the evidence. He further contended that the Courts below have completely failed to appreciate the oral as well as documentary evidence on record and drew unwarranted inferences, resulting into miscarriage of justice. He also contended that the Courts below have erred gravely in not appreciating the fact that the complainant/ respondent No.1 had failed to establish that the mandatory notice was duly served upon the petitioner.

6. On the other hand, learned counsel for the respondent No.1-complainant supported the judgment of the lower Appellate Court and contended that the learned trial Court had rightly convicted and sentenced the accused on the basis of proper appreciation of evidence.

7. I have heard learned counsel for the petitioner-accused as well as learned counsel for the respondent No.1-complainant and learned Deputy Advocate General and also gone through the record carefully.

8. Before adverting to the merits of the case, it would be apposite to have a look into the legal position. It is a settled proposition of law that presumption under Section 139 of NI Act is a presumption of law, as distinguished from a presumption of fact, such a presumption is a rebuttable presumption and th