The statutory presumptions under Sections 138, 118, and 139 of the Negotiable Instruments Act are critical in dishonour cases, determining the burden of proof.

ORDER

Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioner under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”).

2. The revision petitioner is the accused in S.T. No. 279/2007 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram.

3. The case of the complainant is that the accused borrowed a sum of Rs.6,00,000/- from her and, in discharge of the said liability, issued a cheque for the said amount in her favour. However, upon presentation, the cheque was dishonoured on the ground of “funds insufficient.” Thereafter, the complainant issued a statutory notice to the accused informing him of the dishonour and demanding payment of the cheque amount. Despite receipt of the notice, the accused neither paid the amount nor sent a reply. Hence, the accused is alleged to have committed an offence punishable under Section 138 of the N.I. Act.

4. During the trial from the side of the complainant, she was examined as PW1, and two other witnesses were examined as PW2 and PW3. The documents produced from the side of the complainant were marked as Exts.P1 to P20. From the side of the defence, DW1 to DW5 were examined and marked Exts.D1 to D12.

5. On appreciation of the evidence on record, the trial court found the accused guilty of the offence punishable under Section 138 of the N.I. Act and convicted him. The accused was sentenced to undergo imprisonment till the rising of the court and to pay an amount of Rs.6,00,000/- as compensation to PW1 under Section 357 (3) of the Code of Criminal Procedure , along with interest at 9% per annum from 07.12.2006. In default of payment of compensation, the accused was directed to undergo simple imprisonment for a period of three months.

6. Aggrieved by the said judgment, the accused preferred Crl.A. No. 37/2015 before the Additional Sessions Court-II, Thiruvananthapuram. The appellate court partly allowed the appeal. While confirming the finding of conviction, the appellate court modified the sentence and directed the accused to pay a fine of Rs.9,00,000/-, with a default clause of simple imprisonment for three months. It was further ordered that the fine amount, if paid or realised, shall be paid to the complainant as compensation under Section 357 (1)(b) of the Code of Criminal Procedure . The substantive sentence of imprisonment till the rising of the court was also confirmed.

7. Heard the learned counsel appearing for both sides and perused the records.

8. The learned counsel for the revision petitioner contended that both the trial court and the appellate court failed to properly appreciate the evidence and arrived at a finding of guilt without due application of mind. It was further argued that the complainant failed to establish the source of the amount allegedly lent to the accused. The learned counsel for the revision petitioner further contended that Ext.P1 cheque was unlawfully obtained by the complainant and misused for filing the complaint.

9. Per contra, the learned Public Prosecutor submitted that there is no illegality or irregularity in the concurrent findings of the courts below. It was argued that the complainant had adduced cogent oral and documentary evidence to establish the transaction and execution of Ext.P1 cheque. It was further contended that the statutory presumptions under Sections 118 and 139 of the N.I. Act operates in favour of the complainant.

10. PW1, in her affidavit filed in lieu of chief examination, reiterated the averments in the complaint. As per her evidence, Ext.P1 cheque was issued towards the repayment of the amount borrowed by the accused. She categorically deposed that the accused brought a duly fi