The presumption of issuance and liability under Sections 138 and 139 of the Negotiable Instruments Act favors the complainant, requiring the accused to provide substantial evidence to rebut.

O R D E R

The revision petitioner is the accused in the case S.T.No.29/2016 on the file of the Court of the Judicial First Class Magistrate-I, Palakkad.

2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of three months and also directed him to pay an amount of Rs.3,00,000/- as compensation to the complainant and ordered that in default of payment of compensation, he shall undergo simple imprisonment for a period of three months.

3. The petitioner filed Crl.A.No.131/2018 before the Court of Session, Palakkad challenging the order of conviction and sentence passed against him by the trial court. The learned Additional Sessions Judge confirmed the conviction but modified the sentence to imprisonment till the rising of the court and confirmed the direction to pay compensation to the complainant.

4. The concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court are challenged by the accused in this revision petition.

5. Heard the learned counsel for the revision petitioner.

6. The case of the complainant/second respondent is as follows: The complainant and the accused were friends. The accused had borrowed an amount of Rs.3,00,000/- from the complainant on 06.09.2012. When the complainant demanded the accused to repay the amount, the accused executed and issued a cheque dated 25.05.2013 for Rs.3,00,000/- in discharge of the liability. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount.

7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P11 documents were marked on his side. The accused got himself examined as DW1.

8. When examined as PW1, the complainant gave evidence that the accused had borrowed Rs.3,00,000/- from him and when he demanded repayment of the amount, the accused came to his house with a cheque which was filled up and that the accused signed the cheque in his presence and gave it to him in discharge of the debt.

9. Execution of Ext.P1 cheque by the accused and delivery of it by him to the complainant stand proved by the evidence of PW1. Then, the presumption under Section 139 of the Act comes into play. The question is whether the accused was able to rebut that presumption in any manner.

10. The plea of the accused was that he had given a signed blank cheque to his business partner Viswanathan and that the complainant had obtained that cheque from Viswanathan and misused it.

11. When examined as DW1, the accused gave evidence in tune with his plea. But, his evidence in that regard is not reliable and trustworthy for more than one reason.

12. In the first place, the accused could not satisfactorily explain under what circumstances he had given a signed blank cheque to Viswanathan. In the second place, no attempt was made by the accused to examine Viswanathan to prove his plea. In the third place, if he had really given the cheque to Viswanathan, when he received a lawyer notice from a stranger demanding huge amount from him based on such cheque, he would have taken immediate legal action. At least he would have sent a reply to the notice denying liability to pay the amount. No such action was taken by him.

13. The complainant had sent Ext.P4 lawyer notice to the accused demanding payment of the amount of the cheque. The accused had received the notice. Though he had initially taken a plea that he had not received the notice, he admitted in his evidence that he received the statutory notice sent by the complainant. H