The court affirmed that the petitioner, who issued a cheque for a borrowed sum, failed to rebut the presumption under Sections 118 and 139 of the Negotiable Instruments Act regarding the cheque's legitimacy.

ORDER

This revision petition has been filed challenging the concurrent finding of conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act, 1881 (for short, the NI Act.

2. The respondent No.2 filed a private complaint against the petitioner under Section 142 of the NI Act alleging offence punishable under Section 138 of the NI Act before the Judicial First Class Magistrate Court-II, Tirur (for short, the trial court) as S.T.No.5/2017. The case of the respondent No.2 is that the petitioner borrowed a sum of ₹10,00,000/- from him and towards the discharge of the said debt, Ext.P2 cheque was issued which on presentation was dishonoured for want of sufficient funds. Even though statutory notice under (b) of the NI Act was issued, it was returned unserved as it was evaded by the petitioner. Since there was no compliance, the prosecution was launched.

3. Before the trial court, on the side of the complainant/respondent No.2, PW1 was examined and Exts.P1 to P5 were marked. DW1 was examined on the side of the defence and Exts.D1 to D4 were marked. After trial, the trial court found the petitioner guilty under Section 138 of the NI Act. He was sentenced to undergo imprisonment till the rising of the court and to pay the compensation of ₹10,00,000/- (Rupees ten lakhs only), in default to suffer simple imprisonment for a period of four months. The petitioner challenged the conviction and sentence of the trial court before the Additional Sessions Court, Tirur (for short, the appellate court) in Crl.A.No.86/2020. The appellate court dismissed the appeal. This revision petition has been filed challenging the judgments of the trial court as well as the appellate court.

4. This Court in Crl.M.A.No.2/2025 has suspended the execution of the sentence on condition that the petitioner shall execute a bond for ₹1,00,000/-(Rupees one lakh only) with two solvent sureties for the like sum each to the satisfaction of the trial court and on further condition that the petitioner shall deposit 40% of the compensation amount before the trial court within one month. Since it was represented by the learned counsel for the petitioner that the petitioner was in jail, he was directed to be released on bail on execution of the bond and to deposit 40% of the compensation amount within one month of his release. The petitioner did not comply with the said direction. He has approached the Supreme Court challenging the order of this Court in Crl.M.A.No.2/2025 dated 6.3.2025. The Honourable Supreme Court as per order dated 8.9.2025 granted three weeks' time to deposit the 40% of the compensation amount. It was stated that the sentence would stand suspended if the deposit is made within three weeks. However, the said direction has not been complied with. When the case came up for consideration on 27.11.2025, there was no representation for the petitioner. On previous postings also, there was no representation. Since the 40% of the compensation amount directed to be deposited was not deposited, the counsel for the respondent No.2 insisted for hearing the revision petition itself. Thereafter, the learned counsel for the petitioner appeared and submitted that he has no instructions. Hence, Adv. M. Shajna was appointed as Amicus Curiae.

5. I have heard the learned Amicus Curiae and the learned counsel for the respondent No.2. I have also perused the records. I place on record my appreciation for the able assistance rendered by the learned Amicus Curiae.

6. To prove the case of the complainant/respondent No.2, he himself was examined as PW1. He deposed in tune with the averments in the complaint. According to him, the petitioner borrowed a sum of ₹10,00,000/- from him agreeing to repay the same within one yea