IMPORTANT POINT
The presumption of debt under Section 139 of the N.I. Act requires the accused to rebut the presumption to avoid conviction under Section 138.

ORDER :

V Srinivas, J.

Assailing the judgment dated 11.02.2009 in Crl.A.No.141 of 2007 on the file of the Court of learned X Additional Sessions Judge, Krishna at Machilipatnam, confirming the conviction and sentence imposed by the judgment dated 23.10.2007 in C.C.No.632 of 2004 on the file of the Court of learned II Additional Judicial Magistrate of First Class at Machilipatnam, 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 12.02.2009 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.260 of 2009.

3. The shorn of necessary facts are that:

i). On 28.06.2002, the accused borrowed an amount of Rs.50,000/- for his family expenses and to discharge sundry debts from the complainant, agreed to repay the same with interest @ 24% per annum and executed a promissory note in favour of the complainant.

ii). On repeated demands, accused issued Ex.P.1 cheque bearing No.803066, dated 28.08.2004 for Rs.76,000/- drawn on Vysya Bank, Machilipatnam towards payment of promissory note debt and while giving the said cheque, she got return the said promissory note. Then the said cheque was presented for collection on 22.09.2004 but returned unpaid with an endorsement “Account Closed” under Exs.P.2 and P.3 memos.

iii). On that, the complainant got issued Ex.P.4 legal notice dated 18.10.2004 demanding the accused for payment of entire cheque amount, the same was received by him under Ex.P.5 acknowledgment, dated 26.10.2004. But did not choose to pay the cheque amount. Hence, the complaint.

4. The complaint was taken on file and numbered as C.C.No.632 of 2004 on the file of the Court of learned II Additional Judicial Magistrate of First Class at Machilipatnam 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 to pay fine of Rs.2,000/-, in default to suffer simple imprisonment of one (1) month and also directed her to pay compensation of Rs.76,000/- to the complainant under Section 357 of Cr.P.C.

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.141 of 2007, before the Court of learned X Additional Sessions Judge, Krishna at Machilipatnam and the same was dismissed, vide judgment dated 11.02.2009, 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 M.Yuvasiva Swamy, learned counsel for the petitioner/accused and Sri S.Ramachandra Prasad, learned counsel for the 1st 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 M.Yuvasiva Swamy, learned counsel for the petitioner/accused submits that complaint failed to prove the ingredients to constitute the offence alleged against the petitioner; that the testimony of P.W.1 is not reliable; that Ex.P.1 cheque was given as surety for the amount borrowed by the husband of the petitioner; that petitioner did not execute any promissory note; that both the Courts below failed to appreciate the testimony of D.Ws.1 and 2; that both the Courts below without appreciation of material on record, erroneously convicted the petitioner for the said offence and the same is liable to be set aside.

10. Sri S.Ramachandra Prasad, learned counsel for the 1st respondent/complainant submits that accused borrowed an amount of Rs.50,000/- from the complainant, executed a promissory note, in turn, on demand, issued Ex.P.1 cheque for an amount of Rs.76,000/- to discha