The presumption of guilt under section 118 of the Negotiable Instrument Act can be invoked if the accused fails to rebut the evidence presented by the complainant.

Per : U.C.Maheshwari J.:-

The applicant/accused has filed this revision under section 397/401 of the Cr.P.C, being aggrieved by the Judgment dated 29.09.2006 passed by the Special Judge/Addl. Sessions Judge, Sagar in Cr.A.No.184/06 affirming the judgment dated 3.7.06 passed by the JMFC, Sagar in Cr.Case No.706/04 convicting and sentencing the applicant under section 138 of the Negotiable Instrument Act (in short 'the Act') for RI 1 month with fine of Rs.85000/-, in default of depositing such fine amount further RI 15 days, has been awarded. Out of the aforesaid fine amount Rs.75000/- was directed to be given to the respondent/complainant.

2. The facts giving rise to this revision in short are that respondent herein filed a private complaint against the applicant for prosecution under section 138 of the Act. As per averment of such complaint, the applicant herein, in consideration of Rs.50,000/-, had given him the impugned cheque bearing No.8213242 dated 8.9.02. After receiving the cheque, the respondent deposited the same with his banker for its collection but he received such cheque from the banker with a memo having an endorsement that sufficient fund is not available in the account of the applicant and, accordingly such cheque was dishonoured, on which, within the prescribed period, a demand notice was also given by the respondent to the applicant. But inspite service of such notice within the prescribed period, neither any reply of such notice was given by the applicant nor the consideration of such cheque was paid, on which, by adopting the procedure provided under the Act, the impugned complaint was filed by the respondent to prosecute the applicant under section 138 of the Act.

3. After recording the evidence under section 200 and 202 of the Cr.P.C, the cognizance of such offence was taken by the trial court against the applicant and he was summoned. On his appearance, the plea was recorded. The applicant abjured the guilt, on which, the trial was held, in which, after recording the evidence of the respondent in support of the complaint and also recording the accused/statements of the present applicant, he was also extended an opportunity to adduce the evidence in support of his defence. But inspite giving continuous two opportunities, he did not adduce any evidence, on which, his right to lead the evidence was closed and after hearing the arguments of the parties, the case was decided in which the applicant has been convicted and sentenced as stated above. On filing the appeal, by affirming the impugned judgment, the same was also dismissed, on which, the applicant has come forward to this court with this revision.

4. Shri Sampurna Tiwari, counsel for the applicant after taking me through the record of the trial court as well as the judgment of both the courts below along with some proceedings of the trial court said that sufficient and ample opportunity to adduce the evidence was not given to the applicant by the trial court and such right has been closed under wrong premises. In continuation, he said that whatsoever evidence has been led on behalf of the respondent, on proper appreciation of the same, it could not be held that the alleged cheque was given by the applicant to the respondent in consideration of some money or in consideration of any transaction. Infact, such cheque was never handed-over by the applicant to the respondent but after settlement of other earlier cheque, with dishonest intention and practicing fraud, the respondent had obtained the disputed cheque from his residence from his daughter, but such aspect has not been considered by both the courts below while holding the conviction and on affirming the same by the appellate court. He also argued that at the time of delivery of the cheque, the coloum of date and amount of such cheque was blank and same was filled by the respondent without his approval and consent. So, in such premises, such cheque could not be treated to be admissible under