The presumption of consideration under Section 139 of the Negotiable Instruments Act is rebuttable, requiring the accused to establish a probable defence rather than prove beyond reasonable doubt.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The instant revision is preferred against the following”-

(A) The judgment and order dated 02.08.2023, passed in Criminal Case No.4465 of 2021, Manish Kumar Gupta Vs. Abdul Qadir and Another, by the court of Second Additional Civil Judge/Judicial Magistrate, Nainital (“the case”). By it, the revisionist has been convicted under Section 138 of the Negotiable Instruments Act, 1881 (“the Act”) and sentenced to one year Simple Imprisonment along with a fine of Rs. 3,00,000/-. And;

(B) The judgment and order dated 06.08.2024, passed in Criminal Appeal No.81 of 2023,, Abdul Qadir Vs. State and Another, by the court of Second Additional Sessions Judge, Haldwani, District Nainital. By it, the judgment and order dated 02.08.2023, passed in the case, has been affirmed.

2. At the time of admission of the revision, the original record has been summoned.

3. Heard learned counsel for the parties and perused the record.

4. The case is based on a complaint filed by the private respondent under Section 138 of the Act. According to it, the revisionist had taken Rs. 2,50,000/- as loan, from the private respondent in the month of October, 2019, for his family needs. In return thereof, the revisionist gave a cheque dated 20.07.2021 of Rs. 2,50,000/- to the private respondent, with the assurance that when presented, the private respondent shall get payment of it. The cheque was presented in the bank, but it was dishonoured. A notice was given to the revisionist. The revisionist refused to receive the notice. Thereafter, the complaint was filed. After enquiry, by the order dated 16.10.2021, passed in the case, the revisionist was summoned to answer accusation under Section 138 of the Act. In evidence, the private respondent was examined as PW1. In fact, prior to it, the accusation was read over to the revisionist. According to the revisionist, he did not issue any cheque in discharge of any of his obligations. Instead, one of his worker, Mohd. Nazim had taken Rs.50,000/- loan from the private respondent, and as a security to it, the cheque was given by the revisionist to the private respondent just after signing.

5. In his examination under Section 313 of the Code of Criminal Procedure, 1973, the revisionist has reiterated the same statement. The revisionist also examined himself as DW1 and one more witness, DW2, Mohd. Nazim, was examined in the defence. After hearing the parties, by the judgment and order dated 02.08.2023, passed in the case, the revisionist has been convicted and sentenced, as stated hereinabove. This judgment and order has unsuccessfully been challenged in appeal.

6. Learned counsel for the revisionist would submit that the prosecution has utterly failed to prove its case beyond reasonable doubt. The judgments and orders are bad in the eyes of law. He raised the following points in his submission:-

(i) The private respondent has not specified any date, when the loan was advanced; the rate of interest was also not disclosed.

(ii) The stand of the revisionist is quite clear throughout that he did not take any loan from the private respondent. Instead, one of his workers, Mohd. Nazim, had loan from the private respondent, and in security thereof, blank cheques were given by the revisionist.

(iii) The need, as stated, for taking loan, is false. According to the private respondent, the revisionist had taken loan for the purpose of study of his son, but the son of the revisionist had already passed B.Tech examination prior to taking of loan.

(iv) The presumption under Section 139 of the Act is rebuttable and the rebuttal may not be beyond reasonab