The burden of proof under Section 139 of the Negotiable Instruments Act lies on the accused to rebut the presumption in favor of the holder of the cheque.

Harbans Lal, J.

1. This revision is directed against the order dated 12.10.2007 rendered by the Court of learned Addition Sessions Judge, Faridkot, whereby he dismissed the appeal preferred against the judgment/order of sentence dated 20.4.2007 passed by the Court of learned Chief Judicial Magistrate, Faridkot, whereby he convicted and sentenced the accused to undergo rigorous imprisonment for one year and to pay a fine of Rs. 10,000/- and in default of payment of fine, to further undergo rigorous imprisonment of three months under Section 138 of The Negotiable Instruments Act, 1881 (for brevity, the Act).

2. Tersely put, facts of the prosecution case are that on 24.6.2003, Ganga Prashad accused borrowed a sum of Rs. 1,82,000/- from Lalit Kumar, complainant with a promise to return the same on demand together with interest at the rate of Rs. 2/- per cent per month. In order to discharge his liability when the debt amount was demanded, Ganga Prasad issued cheque in the sum of Rs. 2,40,000/- dated 30.11.2004 drawn on the Faridkot Central Cooperative Bank Limited, Faridkot (for short, the Bank). When the cheque was presented for encashment to the bank, the same was bounced with the remarks insufficient funds vide Memo dated 2.12.2004 issued by the Bank. On receipt of this intimation the complainant issued a Registered notice dated 11.12.2004 calling upon the accused to make payment within 15 days but the notice was received back with the remarks as unclaimed. The payment was not made even thereafter. On these allegations, Lalit Kumar lodged a complaint under Section 138 of the Act.

3. After recording preliminary evidence, the accused was summoned. On his appearance in the Court, he was served with a notice under Section 138 of the Act, to which he did not plead guilty and claimed trial.

4. To bring home guilt against the accused, the complainant by deposing as PW-1, proved original cheque, Exh. P-1, Memo, issued by the Bank, Exh. P-2, Carbon copy of notice, Exh. P-3, Receipt Exh. P-4 and undelivered registered envelope, Exh. P-5. Veena Kumari, Assistant Manager of the Bank, PW-2 has proved Exh. P-6, the entry in the register regarding return of the cheque, Exh. P-7 Statement of account of the accused, Exh. P-8 Memo, dated 2.12.2004, Exh. P 9 copy of account opening form of the accused. Bharpur Singh, Junior Officer of Bank of Punjab, Kotkapura as PW-3 has proved the Ex. P-10, P-ll and P-12.

5. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He has denied issuance of cheque as well as the receipt of alleged debt amount.

6. After hearing the learned Counsel for the parties and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feling aggrieved therewith, the accused-appellant preferred an appeal, which met failure vide order dated 12.10.2007 handed down by the Court of learned Additional Sessions Judge, Faridkot.

7. I have heard Mr. Surinder Garg, Advocate, counsel for the petitioner and Mr. Ashish Gupta, Advocate, counsel for respondent.

8. Mr. Surinder Garg, Advocate, counsel for the petitioner, making a short shrift of his arguments, canvassed at the bar that (a) the complainant/respondent has failed to prove passing of the consideration to the petitioner and that if the alleged cheque was issued by him (petitioner), the same was not issued towards the discharge of any liability; (b) while appearing as PW-1, the respondent-Lalit Kumar has admitted in his cross-examination that the cheque was not signed in his presence and the same was sent through Bunty son of the Petitioner; (c) the signatures of the petitioner on the cheque are in blue ink, whereas the cheque has been filled in black ink; (d) the characteristics of the writing of the signatures as well as the cheque appear to be different; (e) the son of th