TMI Blog2020 (8) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... harge of any debt or liability in terms of Section 138 of the N.I.Act. In this case, the accused has failed to raise a probable defence which creates doubt with regard to the existence of a debt or liability. In the light of the evidence adduced, this Court is perfectly in agreement with the findings of the trial court as well as the appellate court that the presumption mandated by Section 138 of the N.I.Act has not been rebutted, in accordance with law. Revision Petition is dismissed confirming the concurrent conviction and sentence imposed against the revision petitioner by the trial court as well as the appellate court. During the pendency of the proceeding, this Court called for a report from the Sub Inspector of Police, Vithura Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffered concurrent conviction and sentence under Section 138 of the N.I.Act in a proceeding under Section 138 of the N.I.Act. The case of the complainant is that, the accused borrowed an amount of ₹ 2,50,000/- from him on 25.04.2001 for a legally enforceable debt and issued Ext.P1 cheque dated 25.05.2001 to the complainant. When the cheque was presented for encashment, the same was returned on the ground of 'funds insufficient'. The complainant issued advocate notice dated 06.10.2001 requiring the accused to pay the amount covered under the cheque within the statutory time. The amount was not paid as requested and hence, the complaint was filed before the trial court. 3. During the trial of the case, PW1 was examined and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused. Ext.P4 demand notice was issued right in time, which was accepted by the accused. However, the amount was not repaid as demanded. Once Ext.P1 cheque is proved to be issued, it carries statutory presumption of consideration. Thus, the onus is on the respondent to disprove the presumption at which the respondent was failed in this case. The contention that there exist a hire purchase agreement between the parties is not sufficient to rebut the presumption under Section 139 of the N.I.Act. 6. A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118A and Section 139 of the N.I.Act. Once the complainant has succeeded in proving that the accused executed the cheque, then the onus sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... today. As per records, he has no properties of his own. Merely because the revision petitioner is bedridden and has no properties of his own, the same itself is not a ground to acquit the accused. In the result, this Criminal Revision Petition is allowed in part. The sentence is modified as follows: The accused is sentenced to pay a fine of ₹ 2,50,000/- and in default to pay the fine amount, the accused shall undergo sentence of simple imprisonment for a period of three months. The fine amount if realised, the same shall be released to the complainant under Section 357(1) of Cr.P.C. If any amount is deposited by the accused during the pendency of the proceedings, pursuant to the interim order passed by this Court, the same shal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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