Admission of cheque issuance triggers presumption of debt under NI Act; security cheque liable for existing liability; unlicensed moneylender's NI complaint maintainable; revisional court defers to concurrent findings absent perversity. (28 words)

JUDGMENT :

Rakesh Kainthla, J.

The present revision is directed against the judgment dated 13.09.2024, passed by learned Additional Sessions Judge Paonta Sahib, District Sirmour, H.P. (learned Appellate Court), vide which the judgment of conviction dated 06.06.2023 and order of sentence dated 15.06.2023 passed by learned Judicial Magistrate First Class, Shillai, District Sirmour, 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 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 (NI Act). It was asserted that the complainant and the accused belonged to the same village and they had friendly relations with each other. The accused sought financial help for Rs.1,10,000/- from the complainant in May 2014 for constructing his house. The complainant paid Rs.60,000/- in cash and Rs.50,000/- by cheque to the accused. The accused again demanded Rs.50,000/- and the complainant advanced Rs.50,000/- vide cheque dated 09.08.2014. The complainant asked the accused to repay the amount in the year 2017. The accused sought time to repay the amount. He executed a promissory note dated 20.03.2017 admitting his liability to pay the borrowed amount of Rs.1,60,000/-. He issued a cheque of Rs.1,60,000/- on 31.12.2018 to repay the amount. The complainant presented the cheque to the bank, but it was dishonoured with an endorsement “funds insufficient”. The complainant issued a notice to the accused, which was served upon him on 06.05.2019. The accused assured to repay the amount but failed to do so. Hence, a complaint was filed to take action against the accused as per the law.

3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, the learned Trial Court put a notice of accusation to the accused 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 Yogender Pratap Singh (CW1), Anil Kumar (CW2), Nanak Chand (CW3) and himself (CW4).

5. The accused, in his statement recorded under Section 313 of Cr.P.C., stated that he had received Rs.50,000/- through a cheque and returned it. He had issued the cheque as security for the repayment of the money. The complainant misused the cheque. He stated that he wanted to lead the defence evidence. However, no evidence was produced despite repeated adjournments. Hence, the evidence was closed on 05.08.2022.

6. Learned Trial Court held that the promissory note proved that the accused had borrowed Rs.1,60,000/- from the complainant. The accused admitted his signature on the cheque. There is a presumption that the cheque was issued for consideration to discharge the debt/liability. The burden is upon the accused to rebut the presumption. His evidence was not su