ORDER

Dated this the 12th day of October, 2020 This revision petition is directed against the judgment dated 26.11.2003 rendered by the Sessions Court, Kasaragod in Crl. Appeal No.134 of 2001, whereby the learned Sessions Judge confirmed the conviction and sentence imposed by the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, “NI Act”). By its judgment dated 26.05.2001, the learned chief Judicial Magistrate, Kasaragod convicted and sentenced the accused for the offence under Section 138 of the NI Act to undergo simple imprisonment for a period of 11 months. In appeal, the sentence was modified, directing the accused to undergo simple imprisonment for six months and to pay a compensation of Rs.2,50,000/- to the complainant and in default of payment of fine to undergo simple imprisonment for a period five months more. Feeling aggrieved, the accused is before this Court in revision.

2. It is the case of the 1st respondent/complainant (hereinafter referred to as, “complainant”) that the revision petitioner/accused (hereinafter referred to as, “accused”) issued Ext.P2 cheque for Rs.2,50,000/- to the complainant towards discharge of a debt arising out of a loan transaction availed from her. The cheque was, on presentation, dishonoured due to insufficiency of funds in the account of the accused. Notice issued intimating dishonour and demanding the sum covered by the instrument was acknowledged by the accused, but not responded with reply of payment. Hence, the complaint was filed under Section

138 of the NI Act before the trial court.

3. Upon consideration of the complaint, the learned magistrate is prima facie satisfied that the case is made out against the accused. Hence, the learned magistrate took cognizance of the offence under Section 138 of the NI Act and the case was taken on file as CC No.155 of 1999 of the Chief Judicial Magistrate Court, Kasaragod.

4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, the Power of Attorney of the complainant was examined as PW1 and marked Exts.P1 to P5. After the witness for the complainant had been examined and before the accused was called on for her defence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure for the purpose of enabling her to explain the incriminating circumstances appearing in the evidence against her.

5. On appreciation of evidence, the learned magistrate held that the execution of Ext.P2 cheque was proved and the cheque was dishnoured on account of the reason, “insufficient funds” in the account of the accused. The learned magistrate concluded that the cheque was issued by the accused for the discharge of a legally enforceable debt.

6. Heard Sri.K.V.Sreeraj, the learned Amicus Curie appointed by this Court for the revision petitioner/accused; the learned counsel for the 1st respondent/complainant; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent State.

7. In order to determine the question whether the offence punishable under Section 138 of the Act is made out against the accused, it is necessary to examine the penal provision of Section 138 of the Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. Section 118 of the Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as