In a Section 138 N.I. Act prosecution, once the execution of a cheque is proven, the statutory presumption under Section 139 shifts the burden to the accused; revisional courts will not interfere with concurrent findings unless they are shown to be perverse or illegal.

ORDER

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

2. The revision petitioner is the accused in S.T. No. 6/1999 on the file of the Judicial First Class Magistrate Court, Kodungallur.

3. The case of the complainant is that the accused borrowed a sum of Rs.85,000/- from him and, in discharge of the said liability, issued a cheque for the said amount in favour of the complainant. However, upon presentation, the cheque was dishonoured, stating the reason “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 any reply. Hence, the accused is alleged to have committed an offence punishable under Section 138 of the N.I. Act. 4. During the trial, the complainant himself got examined as PW1 and marked Exts. P1 to P7. On the side of the defence, DW1 and DW2 were examined and Exts. D1 and D2 were marked.

5. Upon an 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 simple imprisonment for one month and to pay an amount of Rs.85,000/- as compensation to the complainant. 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 criminal appeal No. 146/2004 before the Sessions Court, Thrissur. The learned Additional Sessions Judge, Thirssur (Ad hoc-II), who heard the appeal, partly allowed the same. While confirming the conviction, the appellate court modified the sentence to imprisonment till the rising of the court and to pay compensation of Rs.1,25,000/- to the complainant. In default of payment of the compensation, the accused was ordered to undergo simple imprisonment for one month.

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 on record 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 and that it is difficult to believe that the complainant, who is admittedly a toddy tapper, possessed the financial capacity to advance such a substantial amount. The learned counsel further submitted that neither the transaction alleged nor the execution of the cheque has been satisfactorily proved. Consequently, it was contended that no presumption could be drawn in favour of the complainant under Sections 118 and 139 of the N.I. Act. On these premises, it was urged that the impugned judgment warrants interference.

9. Per contra, the learned counsel for the first respondent/

complainant submitted that the complainant had succeeded in proving the transaction as well as the execution of the cheque. According to the learned counsel, once the execution of Ext. P1 cheque stands established, the presumption under Section 139 of the N.I. Act operates in favour of the complainant, and the burden shifts to the accused to rebut the said presumption by adducing cogent and convincing evidence.

10. Before adverting to the merits of the rival contentions, it is apposite to note that th