The court clarified the burden of proof on the accused to rebut the presumption of dishonour under Section 139, while confirming the validity of a consolidated statutory notice under Section 138.

O R D E R

The revision petitioner was accused in CC No.362 of 2019 of the Chief Judicial Magistrate's Court, Alappuzha. The case originated from a complaint filed by the first respondent alleging commission of offence under Section 138 of the Negotiable Instrument Act by the petitioner. In his complaint, the first respondent alleged that the petitioner had borrowed an amount of Rs.3,12,000/- from him on 1-4-2019, promising to repay the amount within three months and executed two post dated cheques for Rs.72,000/- and Rs.2,40,000/- respectively towards discharge of the liability. As the petitioner failed to repay the amount within three months, the cheques were presented. Contrary to the assurance given by the petitioner, the cheques were dishonoured for insufficiency of funds. In spite of the first respondent issuing statutory notice demanding payment of the cheque amount, the petitioner did not respond to the notice or clear the debt. 2. In order to prove his case, the first respondent examined himself as PW1, a witness to the transaction as PW2 and marked Exhibits P1 to P7 documents. No evidence, either oral or documentary, was rendered by the petitioner. The petitioner denied the incriminating circumstances put to him during Section 313 questioning and stated that the cheques were handed over as security for a sum of Rs.50,000/- borrowed for the treatment of his wife. Even though the amount was repaid, the cheques were not returned and was used for filing the complaint.

3. The trial court, on appreciation of evidence and consideration of the legal contentions, found the petitioner guilty and thereupon convicted and sentenced to simple imprisonment for one year and fine of Rs.3,25,000/-, with default sentence of three months. The fine amount, if realised, was directed to be paid to the first respondent as compensation under Section 357(1)(b) of the Cr.P.C.

4. The appeal against the judgment was dismissed, affirming the conviction and sentence imposed by the trial court.

5.Adv.Pinku Mariam Jose appearing for the petitioner submitted that the courts below had committed gross illegality by refusing to accept the petitioner's defence on the premise that he had not enterd the box or let in evidence, to rebut the presumption under Section 139 of the NI Act. The said finding goes against the settled position that the presumption under Section 139 can be rebutted by relying on the strength of preponderance of probabilities. The presumption can also be rebutted by relying on the inconsistencies in the complainant's case. It is contended that the inconsistencies, though highlighted, was not considered by the court below.

6. Yet another contention is that the statutory notice contains a consolidated demand for the amount due under two cheques, even though the two cheques bear different dates and were presented and dishonoured on different dates. As such, two statutory notices ought to have been issued, as contemplated under Section 138 (b) of the NI Act. Further, dishonour of the two cheques having given rise to different causes of action, two separate complaints ought to be filed, as provided under Section 218 of the Cr.P.C.

7. Adv.Sanal Kumar appearing for the first respondent contended that, two courts having concurrently held against the revision petitioner, this Court is not expected to re- appreciate the evidence and come to a different conclusion in exercise of the revisional jurisdiction. The contention that the presumption under Section 139 was rebutted through the preponderance of probabilities, having tilted in the petitioner's favour, is answered by submitting that having failed to send a reply to the statutory notice and to let in cogent evidence, the petitioner cannot rely on suggestions made during cross examination as proof of rebuttal of the presumption.

8. In reply to the contention that consolidated notice demanding the amount due under the two cheques was issued. It is pointed out that, since details and the amou