The drawer of a cheque under Section 138 of the N.I. Act bears the burden to rebut the presumption of liability; failure to do so can result in conviction for cheque dishonour.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant revision under Section 438 read with Section 442 of the BNSS is filed by the petitioner challenging the impugned judgment in Criminal Appeal No. 04 of 2023 of learned Additional Sessions Judge, Titilagarh confirming the order of conviction and sentence directed in 1.C.C. Case No.14 of 2019 by the learned J.M.F.C., Titilagarh on the grounds inter alia that the same is not legally tenable and hence, liable to be set aside.

2. According to the petitioner, the impugned order of conviction and sentence is otherwise bad in law and hence, liable to be interfered with. The contention of the petitioner is that the learned Trial Court has failed to appreciate the evidence on record in its proper perspective and erroneously reached at a conclusion that he is guilty of the alleged offence punishable under Section 138 of the N.I. Act. One of the grounds of challenge is that the petitioner had taken a consistent plea before the learned courts below that he had never maintained the Bank Account, rather, such an account had been opened in his name by the opposite party with a view to reutilize the same to manage financial liabilities, but it has not been taken judicial notice of and therefore, the conviction order is not sustainable in law. The further contention is that taking advantage of prior acquittance with the petitioner, the complainant himself procured the signed cheque and misutilized it with a view to harass him and therefore, the conclusion arrived at by the learned Courts below cannot be sustained. It has been the plea of the petitioner that the opposite party’s claim to the effect that he had given a friendly accommodation/loan to him was believed despite having contradictions in the evidence regarding the date of transaction etc., inasmuch as, the alleged transaction said to have taken place on 9^th May, 2018 but in the affidavit mentioned to have taken place in the month of October, 2018. The contention of the petitioner is, therefore, that the impugned order of conviction is entirely based on surmise and conjecture in absence of any concrete evidence to establish his guilt. That apart, according to the petitioner, no specific question was put to him at the time of his examination under Section 313 Cr.P.C. towards the drawal of the cheque in question and the handwriting available thereon. It has been claimed further that the Bank Account of the petitioner was lying dormant and at no point of time, he had submitted any application to revive the same and therefore, in the light of the evidence on record, the presumption of guilt has been sufficiently rebutted, hence, the learned courts below committed a serious wrong in passing the order of conviction and confirming the same, while dealing with the appeal. With such other grounds, it has been pleaded by the petitioner that the conviction order and the decision of the learned courts below are liable to be set at naught.

3. Perused the LCR.

4. Heard Mr. Singh, learned counsel for the petitioner and Mr. Jain, learned counsel for the opposite party.

5. The opposite party as the complainant claimed that he had given a friendly loan of Rs.9,50,000/- (rupees nine lac fifty thousand) to the petitioner and in that regard, the latter had issued a post-dated cheque for the said amount drawn at the Corporation Bank, Titilagarh for payment to him from an account maintained there. It is further claimed that the cheque was presented by the opposite party time and again and lastly on 7^th June, 2019 for pa