IMPORTANT POINT
The presumption of dishonor under Section 138 of the N.I. Act requires the accused to rebut the complainant's evidence, which was not done in this case.

ORDER :

V Srinivas, J.

Assailing the judgment dated 17.06.2009 in Crl.A.No.23 of 2007 on the file of the Court of learned I Additional Metropolitan Sessions Judge at Visakhapatnam, confirming the conviction and sentence passed against the accused by the judgment dated 08.02.2007 in C.C.No.193 of 2003 on the file of the Court of learned II Additional Chief Metropolitan Magistrate at Visakhapatnam, for the offence under section 138 of Negotiable Instruments Act (hereinafter referred to as “N.I. Act”), the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973.

2. The revision case was admitted on 23.06.2009 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1345 of 2009.

3. The shorn of necessary facts are that:

i). On 01.10.2000, accused borrowed an amount of Rs.50,000/- from the complainant by executing a promissory note and agreed to repay the same with interest @ 24% per annum. On 21.11.2001, accused paid an amount of Rs.2,000/- towards interest and made an endorsement to that effect on the back side of the said promissory note.

ii). Thereafter, even on the repeated demands made by the complainant, he did not pay any amount to the complainant. On that, complainant got issued a legal notice on 12.07.2002 to the accused demanding him to pay the entire due amount. On receipt of the same, accused issued a cheque bearing No.395101 on 01.08.2002 for Rs.70,000/- drawn on ‘The Nedungadi Bank Ltd.’, Visakhapatnam. Then, the complaint presented the said cheque in his bank on 08.08.2002 as per the request made by the accused, but the same was returned with an endorsement “insufficient funds”.

iii). On that, complainant informed the same to the accused and on the request made by him to present the same after 20.10.2002, complainant again presented the said cheque on 21.10.2002 for encashment, but the same was returned unpaid with an endorsement “insufficient funds” on 22.10.2002.

iv). Then complaint got issued a statutory legal notice on 01.11.2002 to the accused demanding him to pay the cheque amount, the same was received by the accused and kept quiet. Hence, the complaint.

4. The complaint was taken on file and numbered as C.C.No.193 of 2003 on the file of the Court of learned II Additional Chief Metropolitan Magistrate at Visakhapatnam and after full-fledged trial, found the accused guilty of the offence under Section 138 of N.I.Act, sentenced him to undergo simple imprisonment of three (3) months and also directed him to pay compensation of Rs.1,000/- to the complainant under Section 357(3) of Cr.P.C.

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.23 of 2007, before the Court of learned I Additional Metropolitan Sessions Judge at Visakhapatnam and the same was dismissed, vide judgment dated 17.06.2009, 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 K.A.Narasimham, learned counsel for the petitioner/accused and Sri K.Ajay Kumar, learned legal aid counsel appointed for the 2nd respondent/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 K.A.Narasimham, learned counsel for the petitioner/accused submits that the complainant failed to prove the ingredients to constitute the offence alleged against the petitioner; that there is no proper memo from the Bank informing that there was dishonor of cheque; that Ex.P.2 cheque return memo has not been proved in terms of law; that the very complaint instituted by the 2nd respondent is wrong; that the Trial Court as well Sessions Court failed to appreciate the material on record in a proper per