Legal presumptions under Sections 118 and 139 of the Negotiable Instruments Act support the prosecution in cases of cheque dishonour, unless effectively rebutted by the defense.

O R D E R

The revision petitioner is the accused in C.C.No.254/2004 on the file of the Judicial Magistrate of the First Class-I, Kottayam. The 2nd respondent herein prosecuted the revision petitioner accusing offence under Section 138 of the Negotiable Instruments Act, with a plea that the revision petitioner borrowed a sum of Rs.60,000/- and in discharge of the same a cheque, which was marked as Exhibit P1, was issued. When the cheque was presented for collection, it was returned dishonoured for insufficient funds and that despite the receipt of the notice demanding discharge, the liability was not discharged.

2. Since the revision petitioner pleaded not guilty, he was sent for trial. The 2nd respondent was examined as PW1. Exhibit P1 to P6 were marked. When the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure, he denied the incriminating evidence and advanced a plea that while borrowing Rs.10,000/- from one Thomas Abraham a blank cheque was issued as security and misusing that cheque, the prosecution was launched. In support of that defence, the revision petitioner was examined as DW1 and another was examined as DW2. Exhibits D1 and D2 were marked. The trial court disbelieved the defence and believed the prosecution. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for three months with a direction to pay Rs.60,000/- as compensation to the

2nd respondent.

3. Aggrieved by the above conviction and sentence, he preferred Crl. A.705/2005 before the Sessions Judge, Kottayam. The Additional Sessions Judge, Kottayam to whom the appeal was made over, by the impugned judgment dated 19/10/2006, while confirming the conviction, reduced the substantive sentence to imprisonment till the rising of the Court. Order to pay compensation was sustained. Assailing the legality, correctness and propriety of the above conviction and sentence as reduced in appeal, this revision petition is preferred.

4. None appeared for the revision petitioner. I had gone through the judgments of the courts below. The 2nd respondent, through his evidence as PW1 had succeeded to establish the borrowal, issuance of cheque, presentation of the same for collection, dishonour of the same for want of funds, demand by notice in writing, acknowledgment of the same by the revision petitioner and failure to discharge. His evidence is supported by Exhibit P1 to P6. The revision petitioner as DW1 and DW2 would depose that Exhibit P1 cheque was issued as security to Thomas Abraham while borrowing Rs.10,000/-. Curiously, the said Thomas Abraham was not examined. Adding to that, while PW1 was cross- examined, it is suggested that the cheque was issued in 1999. But in the Box, the revision petitioner as DW1 would depose that the cheque was issued in 2000. So, as regards the issuance of the cheque to Thomas Abraham, the revision petitioner has no consistent case. The evidence of PW1 remains uncontroverted. It is supported by presumptions under Section 118 and 139 of the Negotiable Instruments Act. Evidence of DW1 and DW2 is not sufficient to rebut the legal presumptions. In the above circumstance, I find no error, illegality or impropriety committed by the courts below in disbelieving the defence and believing the prosecution case. I find that the conviction is based upon cogent evidence. The appellate court was very lenient in reducing the substantive sentence to imprisonment till the rising of the court. The order to pay compensation is quite appropriate. There is no room for any interference in revision.

In the result, the revision petition is dismissed with direction to the trial court to see the execution of sentence and report compliance.