The presumption of liability under Sections 118 and 139 of the N.I Act places the burden on the accused to rebut the claim of debt, which he failed to do.

ORAL ORDER

This petition filed under Section 397(1)and 401(1) of the Code of Criminal Procedure is by the accused challenging the judgment and order of conviction passed by the trial Court for the offence punishable under Section 138 of N I Act, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.

2. For the sake of convenience, parties are referred to by their ranks before the trial Court.

3. Complainant filed a complaint under Section 138 of N.I Act, contending that he and accused are friends. For his necessity, accused borrowed a sum of Rs.60,000/- from complainant on 10.04.2005 and issued cheque dated 06.06.2005 with a direction to get the amount from his account. Accordingly, he presented the cheque on 06.06.2005 for encashment through his account. However, it came to be dishonoured for want of sufficient funds. Complainant got issued legal notice dated 21.06.2005. Though duly served, the accused has neither sent reply nor complied with the same and hence the complaint.

4. Accused appeared through counsel and contested the case by pleading not guilty.

5. In order to prove the allegations against accused, the complainant has examined himself as PW-1 and got marked Ex.P1 to 5.

6. During his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant.

7. Accused has also given evidence as DW-1. No documents are marked on his behalf.

8. The trial Court convicted the accused and sentenced him to pay fine of Rs.80,200/- with default sentence.

9. Accused challenged his conviction and sentence before the Sessions Court, which came to be dismissed.

10. Challenging the concurrent findings of the trial Court as well as the Sessions Court, accused has filed this petition contending that they are illegal, improper and opposed to the facts and circumstances of the case. Both Courts have failed to appreciate the evidence in proper perspective. They have failed to appreciate the fact that complainant has not proved his financial capacity and that the alleged loan is legally enforceable debt. The findings of the trial Court and Sessions Court are not supported by valid reasons.

11. On the other hand, learned Amicus Curiae representing the complainant supported the impugned judgment and order of the trial Court as well as the Session Court and submitted that in the light of the fact that the cheque in question is drawn on the account of the accused and it bears his signature, presumption under Section 139 of the N.I Act comes into play placing the initial burden on the accused to rebut the same. In the present case, the accused has not only failed to rebut the presumption, but also taken inconsistence defence which he has failed to prove. Considering the oral and documentary evidence on record, both courts have come to a correct conclusion. There is no perversity calling for interference by this Court, in exercise of its revisionary jurisdiction and sought for dismissal of the petition.

12. In support of her arguments, she has relied upon the following decisions:

(i) Bir Singh Vs. Mukesh Kumar (Bir Singh), (2019) 4 SCC 197.

(ii) Rajesh Jain Vs. Ajay Singh (Rajesh Jain), (2023) 10 SCC 148

(iii) Tedhi Singh Vs. Narayan Dass Mahant (Tedhi Singh), (2022) 6 SCC 735

(iv) Rangappa Vs. Mohan (Rangappa), (2010) 11 SCC 441

13. Heard arguments of both sides and perused the record.

14. It is not in dispute that the cheque in question is drawn on the account of accused and it bears his signature and when presented for realisation, it is dishonoured for want of sufficient funds. After issuing legal notice, complaint is filed. Therefore, presumption under Section 118 and 139 of the N.I Act comes into picture to the effect that the cheque was issued towards repayment of any legally recoverable debt or liability, placing the initial burden on the accused to rebut the same.

15. Having failed to send reply to the legal notice, the accused has lost opportunity to come up with the specific de