1. Heard the learned counsel appearing for the parties.

2. The present petition is filed under Section 397 of Cr.P.C., challenging the concurrent finding given by the learned JMC CourtII at Raichur in Criminal Case No.600/2007 and affirmation of the same by the learned Second Additional Sessions Judge at Raichur in Criminal Appeal No.1/2014.

3. The petitioner was the accused in Criminal Case No.600/2007 in the case initiated by the respondent herein for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, (for short ‘the Act’), on filing the complaint before the learned JMFC Court.

4. The case of the complainant/respondent is that the petitioner herein is known to him very well and he had requested him to advance a handloan of Rs.1.5 lakhs and he is said to have issued a cheque of Rs.1.5 lakhs on 09.08.2000, drawn on Syndicate Bank, Deodurga Branch. The said cheque was presented for payment and it was returned with an endorsement “insufficient amount in the account of the holder” vide memo dated 22.10.2006. Later on, the petitioner got issued the legal notice on 28.10.2006, calling upon him to repay the said amount, lest he would be forced to initiate criminal proceedings. In spite of the receipt of the legal notice got issued on 22.10.2006, the petitioner/accused did not repay the money and hence complaint was filed by the respondent. In view of delay of 5 days in filing the complaint, applicant had filed an application as per proviso to Section 142(b) of the Act, seeking condonation of delay in filing the complaint. In spite of filing of this application, the learned JMFC did not consider the same and proceeded to record the evidence.

5. The complainant has been examined as PW.1 and has got marked as many as five exhibits as Exs.P1 to P5. The accused has been examined as DW.1 and has got marked four exhibits as Exs.D1 to D4. He has denied the charges levelled against him. According to the accused, he wanted to purchase 6 acres 3 guntas in Sy.No.14 of Gilesugur village, Raichur district from one Sri.Yenkobachar and that he had paid a sum of Rs.1.5 lakhs as advance to Sri.Yenkobachar. The cheque in question is said to have been given as security to the complainant, till the sale transaction materialized in favour the complainant and that it was not a loan transaction.

6. After going through the records, the trial Court has come to the conclusion that the accused is not able to probablise the defence set up by him and therefore, the offence punishable under Section 138A of the Act is proved. The rebuttal evidence placed by the accused is not at all sufficient to discharge this burden to the effect that he has not committed any offence is the finding of the trial Court. Therefore, the trial Court has come to the conclusion that the accused had received a sum of Rs.1.5 lakhs from the complainant and the cheque marked as per Ex.P1 was issued for having received the said amount in discharge of the debt. Therefore, he is stated to have committed the offence punishable under Section 138 of the Act.

7. The First Appellate Court has also reassessed the entire evidence and has come to the conclusion that nothing useful has been elicited from the mouth of PW.1 to rebut the presumption available under Sections 138 and 139 of the Act. It is further held that the accused, though has entered into witness box, has not been able to probablise his defence in regard to the cheque being issued in favour of the complainant as a security only.

8. The main ground urged by the learned counsel for the petitioner Sri.Ameet Kumar Deshpande is that there was a delay of five days in filing the complaint and the same has not been condoned by the Trial Court in spite of Court having power under proviso to Section 142(b) of the Act. Therefore, the entire proceedings will have to be quashed and the accused/petitioner is to be acquitted.

9. Per contra, the learned counsel for the respondent has relied upon the decision of the Ape