The presumption of debt under the Negotiable Instruments Act favors the complainant, and the accused must rebut this presumption, which was not done in this case.

JUDGMENT :

(V. SRINIVAS, J.)

Assailing the judgment dated 13.10.2015 in Crl.A.No.183 of 2011 on the file of the Court of learned IV Additional Sessions Judge at Visakhapatnam, confirming the conviction and sentence passed against the accused by the judgment dated 12.12.2011 in C.C.No.99 of 2010 on the file of the Court of learned Chief Metropolitan Magistrate at Visakhapatnam, for the offence under section 138 r/w.142 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 21.01.2016 and the sentence imposed against the petitioner was suspended, vide order in Crl.R.C.M.P.No.294 of 2016.

3. The shorn of necessary facts are that:

i). On 17.01.2008, the accused borrowed an amount of Rs.3,00,000/- from the complainant agreeing to repay the same with interest @ 24% per annum and executed Ex.P.1 promissory note in favour of the complainant. Later, accused got issued Ex.P.2 cheque bearing No.779332, dated 08.12.2009 for Rs.1,00,000/- drawn on Andhra Bank, Seethmmadhara Branch at Visakhapatnam towards part payment of debt amount under Ex.P.1. When the complainant presented the said cheque for collection through his banker on 08.12.2009, the same was returned with an endorsement that ‘insufficient funds’ under Ex.P.3 cheque return memo, dated 11.12.2009.

iv). Then, the complainant got issued Ex.P.4 notice dated 21.12.2009 to the accused. Even after receipt of the same under Ex.P.5 acknowledgment, the accused did not make any payment and kept quiet. Hence, the complaint.

4. The complaint was taken on file and numbered as C.C.No.99 of 2010 on the file of the Court of learned Chief Metropolitan Magistrate at Visakhapatnam, after full-fledged enquiry, vide judgment dated 12.12.2011, found the accused guilty of the offence under Section 138 r/w.142 of N.I.Act and sentenced him to undergo simple imprisonment for six (6) months and also to pay fine of Rs.3,000/-, in default to suffer simple imprisonment of two months.

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.183 of 2011, before the Court of learned IV Additional Sessions Judge at Visakhapatnam and the same was dismissed, vide judgment dated 13.10.2015, by confirming the conviction and sentence passed against the accused.

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.Suryanarayana, learned counsel for the petitioner/accused.

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. The only contention raised by the learned counsel for the petitioner/accused is that the matter was settled out of Court and filed joint memo before the Court below, but, without considering the said fact, the Trial Court convicted the petitioner for the said offence, which was affirmed by the first Appellate Court, thereby, the conviction and sentence passed against the petitioner are liable to be set aside.

10. It is not in dispute about the signatures of accused on Exs.P.1 and P.2. It is also not in dispute that when Ex.P.2 cheque was presented, the same was returned unpaid under Ex.P.3 memo issued by the Bank concerned and that the complainant issued Ex.P.4 statutory notice, the same was received by the accused under Ex.P.5 acknowledgement and kept quiet.

11. It is settled law that unless contrary is proved, the presumption is in favour of complainant under Section 118 of N.I.Act. Section 139 of N.I.Act enjoins the Court to presume that the holder of the cheque received it for the discharge of any debt or liability and the burden is only on the accused to rebut the said presumption. In the present case on hand, the accused utterly failed to