A statutory presumption under Section 139 of the NI Act cannot be rebutted solely through suggestions in cross-examination; the accused must lead cogent defence evidence to establish the absence of a legally enforceable debt.

ORAL ORDER

This revision petition is filed against the concurrent finding of the trial Court passed in CC No.237 of 2011 and also the confirmation order passed in Criminal Appeal No.175 of 2020.

The factual matrix of case of complainant/respondent before the trial Court is that the accused has issued cheques for a sum of Rs.1,35,000/-, Rs.1,00,000/-, Rs.1,20,000, Rs.1,80,000/- and Rs.1,50,000/- dated 7.7.2009 in favour of the complainant in discharge of legally enforceable debt and when the cheques were presented, the same were returned with an endorsement “funds insufficient” and statutory notice was issued and no reply was given and also did not comply with the demand. The trial Court considering the evidence of PW1 and when the defence was taken, that cheque was stolen by the husband of the complainant and to that effect cross examination was made and the same is extracted in paragraph-15 of the judgment of the trial Court and those suggestions are denied, but did not choose to lead any defence evidence to rebut the evidence of the complainant under Section 139 of NI Act, convicted the accused. The appellate Court also having considered the grounds, which have been urged in the appeal memo, formulated the point as to whether the order of conviction and sentence calls for interference and taking note of the demand notice was sent to the accused at the address and first such notice was returned with an endorsement ‘no such addressee at the Pathan Building’ and again the complainant has issued one more notice on 10.08.2009 and as per Ex.P13, it is served upon the accused and the fact that the address of the accused mentioned in Ex.P14 is correct and stands proved. Even otherwise in the cross examination of PW1, the said address of the accused is not disputed and no reply was given. Considering all these materials, the appellate Court confirmed the judgment of the trial Court. Being aggrieved by the conviction and confirmation, the present revision petition is filed before this Court.

In the revision petition, the grounds which have been urged to before this Court are that both the Courts below have lost sight of the fact that the very ingredient of the said offence are not proved by the complainant and the finding of trial Court and appellate Court is erroneous and even referring the judgment of Rangappa vs. Mohan , 2010 (5) KCCR 4063 wherein also the Apex Court held that it is not necessary for the complainant to prove debt to the hit and for that, make Section 139 of NI Act in the said decision, and further held that presumption under Section 139 of NI Act can be discharged as probabilities and it is not necessary for the accused to prove the case beyond the reasonable doubt. The counsel appearing for the petitioner relied upon the judgment of B. Girish Vs. S. Ramaiah²Crl. A.No.1371 of 2013 wherein also the Court held that it was specific defence of the accused that there was no monetary transaction between him and complainant and that no point of time he has borrowed the loan amount. Counsel referring these judgments would contend that both the Courts below have committed an error and failed to consider whether there was any transaction between the complainant and the accused and hence it requires interference of this Court.

Per contra, counsel appearing for the respondent/complainant would submit that issuance of cheque is not in dispute and dishonouring of the cheque is also not in dispute and notice issued against the revision petitioner is also not in dispute and no reply was given. The trial Court considering the defence which was taken, extracted paragraph-15 i.e. analysis and evaluation of rebuttal of presumption by the accused and not proved the defence of stealing of the cheque by the husband of the complainant and hence it does not require any interference.

Having heard the counsel appearing for the revision petitioner and also the counsel appearing for the respondent, the points that would arise for the consideration