IMPORTANT POINT
The presumption of liability under Section 139 of the N.I. Act requires the accused to rebut the presumption once the issuance of the cheque is established.

ORDER :

V Srinivas, J.

Assailing the judgment, dated 16.10.2008, in Crl.A.No.88 of 2007 on the file of the Court of learned III Additional Sessions Judge, Guntur, confirming the conviction and sentence imposed by the Judgment, dated 14.02.2007 in C.C.No.80 of 2006 on the file of the Court of learned V Additional Munsif Magistrate, Guntur, for the offence punishable under section 138 read with 142 of the Negotiable Instruments Act (hereinafter referred to as “N.I. Act”), the petitioner/accused filed the present criminal revision case under Section 397 read with 401 of the Criminal Procedure Code, 1973.

2. The revision case was admitted on 03.06.2016 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1636 of 2016.

3. The shorn of necessary facts are that:

i). Out of money dealings between the complainant and accused, the accused borrowed Rs.60,000/- from the complainant on 18.04.2011 for his necessities and executed a promissory note agreeing to repay the amount together with interest at the rate of 24 percent per annum. On repeated demands made by the complainant, on 20.07.2011, the accused paid the interest up to that date and issued cheque bearing No.344721 for Rs.60,000/- drawn on Syndicate Bank, Rapur, in discharge of the debt due to the complainant. Upon which, the complainant on the same day returned the promissory note and presented the said cheque on 28.07.2011 through Syndicate Bank, Rapur Branch for collection and the same was returned dishonouredon the ground of ‘Insufficient funds’ in the account of the accused.

ii). The complainant got issued the statutory notice on 03.08.2011 calling upon the accused to pay the cheque amount within 15 days of receipt of the notice. The accused on receiving notice got issued reply notice with false allegations. Hence, the complainant filed a private complaint against the accused for the offence under Section 138 read with 142 of the Negotiable Instrument Act.

4. The complaint was taken on file and numbered as C.C.No.400 of 2012 on the file of the Court of learned II Special Judicial Magistrate of First Class, Venkatagiri and after full-fledged trial, found the accused guilty of the offence under Section 138 read with 34 of the N.I.Act and sentenced him to undergo Rigorous Imprisonment of a period of six (6) months and to pay Rs.60,000/- towards compensation, i.d.s.i., for two month under Section 357 Cr.P.C., for the offence punishable under Section 138 read with 148 of the N.I.Act.

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.129 of 2013, before the Court of learned VII Additional District & Sessions Judge, Gudur, and the same was dismissed, vide judgment dated 12.04.2016, by confirming the conviction and sentence passed by the trial Court.

6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.

7. Heard Sri Kambhampati Ramesh Babu, learned counsel for the petitioner/accused and Sri G. Venkateswarlu, learned counsel for the Respondent No.1/complainant.

8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?”

9. Sri Kambhampati Ramesh Babu, learned counsel for the petitioner/accused submits that the complainant failed to prove the ingredients to constitute the offence alleged against the petitioner; that the testimony of P.W.1 is not reliable. The petitioner/accused herein repaid the debt amount borrowed from the complainant and admittedly the complainant also returned the pronote executed by the petitioner. The complainant willfully kept the cheque with him with a malifide intention and filed the present complaint and the said fact is established by the evidence of DWs 1 and 2.Both the Courts below without appreciation of the material on record, erroneously