The presumption under Section 139 of the N.I. Act places the burden on the accused to rebut the liability once the complainant proves dishonour of cheque and service of notice.

ORAL ORDER

This criminal revision petition filed under Section 397 r/w 401 Cr.P.C is by the accused, wherein he has challenged his conviction and sentence for the offence punishable under Section 138 of N.I Act, which came to be confirmed by the Session Court by dismissing the appeal filed by the accused.

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

3. Complainant filed the complaint against the accused alleging offence punishable under Section 138 of N.I Act, contending that accused borrowed a sum of ₹3,25,000/-. Towards repayment of the same, he issued cheque dated 17.01.2012 for ₹3,25,000/-. When complainant presented the cheque for encashment, it was dishonoured for "Funds insufficient". He got issued legal notice dated 01.02.2012 through RPAD and ordinary post. It is received by the accused on 10.02.2012. However, accused has neither paid the amount due nor sent any reply and hence, the complaint.

4. Accused contested the case by pleading not guilty.

5. In order to prove the allegation against the accused, complainant examined himself as PW-1 and relied upon Ex.P1 to 5.

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

7. Accused has given evidence as DW-1 and got marked Ex.D1 and 2.

8. The trial Court convicted accused and sentenced him to pay fine of ₹3,000/- with default sentence of imprisonment. It has also directed the accused to pay compensation in a sum of ₹3,57,500/- to the complainant with the default sentence of imprisonment.

9. Accused challenged the same before the Sessions Court in Crl.A.No.184/2016, which also confirmed the judgment and order of the trial Court by dismissing the appeal.

10. Against the concurrent findings of the trial Court and Sessions Court, accused has filed this petition contending that the judgment and orders under revision are illegal and the Courts below have committed material regularity in convicting him. They have not appreciated the oral and documentary evidence in the right perspective. The legal notice is not sent to the address of accused and therefore it is not served on him. The complainant has failed to prove his financial capacity. In the above facts and circumstances, the conviction and sentence of accused is not sustainable and pray to set aside the judgment and order of the Courts below and acquit him.

11. On the other hand, learned counsel representing the complainant supported the impugned judgment and order of trial Court and sought for dismissal of the petition.

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

13. It is not in dispute that Ex.P1 cheque is drawn on the account of the accused. According to the complainant, after the dishonour of cheque, legal notice was sent to the accused and it is duly served on him as per the acknowledgement at Ex.P5 and accused has not sent any reply. However, at the trial the accused has disputed that legal notice is served on him, and therefore he could not send any reply. He has also disputed that the cheque at Ex.P1 bears his signature. He has also disputed that complainant has stolen the blank cheque from his bag, which he had kept in the house of complainant and misused it.

14. Therefore, at the outset burden is on the complainant to prove that notice is duly served on the accused and the cheque also bears his signature and the presumption under Section 139 of N I Act could be pressed into service. It is pertinent to note that the notice is sent to the accused to the same address as specified in the complaint, as a resident of Bilekallu and it is served on the accused as per the acknowledgement Ex.P4. In the complaint, also summons was served on him on the same address. The order sheet reveal that despite service of summons, when accused fail to appear before the trial Court, NBW was issued. Accused got the case advanced, appeared through counsel and secured bail.

15. The cross-examination