The presumption of liability under the Negotiable Instruments Act is upheld unless conclusively disproven by the accused.

O R D E R

Revision Petitioner is the accused in S.T. No.817/2016 on the files of Judicial First Class Magistrate Court, Kadakkal and he is the appellant in Crl.Appeal No.151/2018 of Sessions Court, Kollam. In this revision, he assails the judgment of conviction and order of sentence against him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act')

2. The parties shall be referred to as complainant and accused as shown in S.T. No.817/2016.

3. The case of the complainant is that on 14.9.2015, the accused borrowed an amount of ₹1,85,000/- from him and in discharge of the said debt, he issued Ext.P1 cheque dated 2.3.2016. On presentation of Ext.P1 cheque, it was returned dishonoured with Ext.P2 memo. Upon receipt of Exts.P2 memo and Ext.P3 intimation letter from the bank, the complainant caused to be sent Ext.P4 lawyer notice to the accused. In spite of receipt of Ext.P4 lawyer notice, accused neither sent any reply nor paid the amount covered by Ext.P1 cheque and thereby committed the offence punishable under Section 138 of N.I Act.

4. Accused pleaded not guilty and denied the liability to pay any amount to the complainant and also denied the issuance of Ext.P1 cheque to the complainant.

5. Evidence consists of the oral testimonies of PW1 and documents marked as Exts.P1 to P6 and Exts.D1 and D2.

6. After trial, the learned Magistrate found the accused guilty of the offence punishable under Section 138 of the N.I Act and he was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of ₹1,85,000/-. In default of payment of fine to undergo simple imprisonment for a period of one month. If the fine amount is realised, the same shall be paid to the complainant under Section 357 (1) Cr.P.C. Though the accused preferred Crl.A No.151/2018 before the Sessions Court, Kollam, the appeal was dismissed, confirming the conviction and sentence.

7. The learned counsel for the accused contended that the complainant failed to establish that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt/liability; that neither in Ext.P4 notice, nor in the complaint there is any mention regarding the particulars of the alleged transaction and therefore, the case of the complainant that accused borrowed an amount of ₹1,85,000/- from him is to be disbelieved. It was contended that the execution of Ext.P1 cheque was not proved by the complainant and therefore, the trial court and the appellate court went wrong in convicting the accused.

8. The learned counsel for the complainant, on the other hand, submitted that there is ample evidence to show that the accused borrowed ₹1,85,000/- from the complainant and issued Ext.P1 cheque in discharge of the said liability. It was further contended that if there was no such transaction and the accused had not executed and delivered any cheque, naturally, he would have sent a reply to Ext.P4 notice and therefore, the contention of the accused that he has not issued Ext.P1 cheque to the complainant is untenable.

9. The point for consideration is whether the impugned judgment of conviction and sentence needs any interference by this Court.

10. Admittedly, Ext.P1 is a cheque issued from the account maintained by the accused. Accused has no dispute over the signature in Ext.P1 cheque. Ext.P1 cheque bears the signature of the accused. Exts.P2 memo and Ext.P3 intimation letter would show that Ext.P1 cheque was dishonoured on 8.3.2016, stating the reason ‘account closed’.

11. The version of the complainant who was examined as