The main legal point established is the burden of proof on the complainant to establish a legally recoverable debt and the accused's burden to prove the absence of liability under Section 138 and Section 139 of the Negotiable Instruments Act.

K. GOVINDARAJULU, J.—The accused In. C.C. No. 10733/2004 on the file of the XII Additional Chief Metropolitan Magistrate Bangalore is the revision petitioner.

2. The parties will be referred according to their ranking found before the Magistrate.

3. The complaint, under Section 200 Cr.P.C. is filed by the complainant complaining an offence under Section 138 of the Negotiable Instruments Act.

4. The facts pleaded by the complainant are that the accused is known to the husband of the complainant. The husband of the complainant Arun Kumar was an employee of Vijaya Bank. He took voluntary retirement.

Then the accused borrowed a sum of Rs. 5 lakh for the purposes of Hotel business, he agreed to repay within few months to Arun Kumar, executed an agreement, also issued a cheque bearing No. 053457 dated 3.3.2004 drawn on Global Trust Bank, Jaynagar Branch, Bangalore, The said cheque was presented, the said cheque returned with the endorsement as “account dosed” on 4.3.2004. So, the complainant got issued notice on 8.3.2004. There was no compliance, so the complainant contend that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act.

5. The defence of the accused is:

(1) he has not borrowed any sum, as the one contended by the complainant;

(2) the complainant/her husband has no capacity to advance the said amount;

(3) there is no pleading as to the circumstances under which the complainant’s husband paid money to the accused;

(4) D.W.2 advanced the loan, the accused paid back the said loan to D.W. 2. D.W. 2 was Introduced by the complainant’s husband.

6. The presence of the accused is secured by the learned Magistrate. Evidence is recorded. P.Ws. 1 and 2 are examined. In response, D.Ws. 1 and 2 are examined.

7. The learned Magistrate has disbelieved the defence thereby believed the case of the complainant, convicted the accused. The conviction is challenged in Criminal Appeal No. 613/2008 on the file of the XXXVI Additional City Civil and Sessions Judge Bangalore, finding is confirmed by the learned Sessions Judge while dismissing the appeal.

8. The learned Advocate for the accused vehemently contend that the evidence placed through P.W. 1-wife of Arun Kumar lacks material particulars. She is not definite about the agreement, date of payment of the money; when the agreement was written; whether the agreement was written or not. So, the evidence placed is not in consonance with the ruling of this Court in Deviprasad Rai vs. A.M. Ganesh Rai, reported in 2005(3) KCCR 1576. This Court has held that it is for the complainant to plead and prove that there is a legally recoverable debt payable by the accused. No such evidence is forthcoming in the facts and circumstances of the case. On the other hand, the evidence of D.W. 1. would probablize that the amount is advanced by D.W.2 and not by the husband of the complainant. The said amount borrowed is cleared in favour of D.W.2. D.W.2 himself has given the evidence. In the evidence, a suggestion is that there is a promise to pay, so, D.W.2 has given a false evidence, so, plead for setting aside the conviction recorded by both the Courts.

9. Learned Advocate for the complainant, on the other hand reads the evidence of D.W.1. Stresses that it is found from the reading of the evidence that two cheques are issued; one for a sum of Rs. 60,000/- and another Rs. 15,000/- in the name of husband of the complainant. If the transaction is with D.W.2, there was no necessity for the accused to give cheques towards repayment of the interest in favour of the husband of the complainant. This cuts the defence of the accused. So, pray for dismissal of the revision petition.

10. Carefully considered the material submission. The complainant has to prove under Section 138 of Negotiable Instruments Act, that there is a legally recoverable debt due and payable by the accused, so also, the accused has to prove under Section 139 of the Negotiable Instruments Act that there is no lia