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TMI Blog2020 (10) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... . By its judgment dated 26.05.2001, the learned chief Judicial Magistrate, Kasaragod convicted and sentenced the accused for the offence under Section 138 of the NI Act to undergo simple imprisonment for a period of 11 months. In appeal, the sentence was modified, directing the accused to undergo simple imprisonment for six months and to pay a compensation of Rs. 2,50,000/- to the complainant and in default of payment of fine to undergo simple imprisonment for a period five months more. Feeling aggrieved, the accused is before this Court in revision. 2. It is the case of the 1st respondent/complainant (hereinafter referred to as, "complainant") that the revision petitioner/accused (hereinafter referred to as, "accused") issued Ext.P2 chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and the cheque was dishnoured on account of the reason, "insufficient funds" in the account of the accused. The learned magistrate concluded that the cheque was issued by the accused for the discharge of a legally enforceable debt. 6. Heard Sri.K.V.Sreeraj, the learned Amicus Curie appointed by this Court for the revision petitioner/accused; the learned counsel for the 1st respondent/complainant; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent State. 7. In order to determine the question whether the offence punishable under Section 138 of the Act is made out against the accused, it is necessary to examine the penal provision of Section 138 of the Act and the presumptions to be raised as envisaged by the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the transaction and also when Ext.P2 cheque was issued. The accused is a close neighbour of the complainant and the compensation received by the complainant on the death of her son in an accident while he was employed in gulf country was advanced as a loan to the accused on her request to meet the expenses in connection with the marriage of her daughter. It is brought out from the evidence of PW1 that PW1 was acquainted with the accused earlier and PW1 was aware of the entire transaction between the parties. Hence, under no circumstances, can it be said that PW1 was not aware of the transaction between the parties. Thus, the attack on the evidence of the Power of Attorney holder is devoid of any merit. 11. On a perusal of the entire evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." 13. In the case at hand, the accused has no case that she has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. In view of the above, this Court is of the view that the trial court and the appellate court rightly entered a finding that Ext.P2 cheque was issued for a legally enforceable debt. Accordingly, the case of the complainant has been proved beyond reasonable doubt. 14. Coming to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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