The present revision petition is filed under Section 397 Cr.P.C., challenging the Judgment of conviction and sentence of fine imposed on the petitioner by the learned 16th ACMM., Bangalore in C.C. No.2542/2008 and affirmation of the same by the first Appellate Court in Crl.A. No.967/2008. The petitioner was accused in C.C. No.2542/2008, in a case instituted by the respondent/complainant for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as the “N.I. Act” for short].

2. The parties will be referred to as the complainant and the accused, as per their rank given in the trial Court.

3. The facts leading under the present revision petition in terms of Section 397 Cr.P.C. is as follows:

The accused had approached the complainant seeking financial assistance to an extent of Rs.4.6 lakhs and the complainant gave a sum of Rs.4.6 lakhs as financial assistance to the accused in April 2007 and as a security, the accused issued a cheque favouring the complainant, drawn on Canara Bank, D.V.G. Road, Bangalore, dated 29.09.2007, in a sum of Rs.4.6 lakhs. The said cheque was presented for encashment by the complainant and the same was returned with endorsement “funds insufficient”. Hence, the complainant got issued a legal notice through her advocate on 02.11.2007, calling upon the accused to pay back a sum of Rs.4.6 laks within 15 days from the date of receipt of the notice lest, she would be constrained to take appropriate legal action. In spite of receipt of the legal notice, the accused did not repay the amount and hence a complaint was filed before the Chief Metropolitan Magistrate Court.

After taking cognizance, process were issued and plea was recorded. The accused had pleaded not guilty and claimed to be tried. In order to bring home the accused, the complainant is examined herself as P.W.1 and has got marked 7 documents. The accused is examined as D.W.1 and her defence is that she had taken only a sum of Rs.1.9 lakhs as financial assistance from the complainant and that she had repaid the same and the cheque marked at Ex.P2 had only been issued as a security and did not return the same even after the repayment of Rs.1.9 lakhs.

After analyzing the evidence placed on record, learned the ACMM has convicted the accused for the offence punishable under Section 138 of the N.I. Act and has directed the accused to pay a sum of Rs.5 lakhs as fine. Out of the said sum, Rs.4.9 lakhs is ordered to be paid as compensation to the complainant in terms of Section 357 Cr.P.C. The aforesaid Judgment of conviction and sentence dated 29.11.2008 was called into question by filing an appeal under Section 374 Cr.P.C. before the Sessions Court at Bangalore and the same was withdrawn and transferred to the Fast Track Court, Bangalore. The said appeal is dismissed after contest. Hence, the present revision petition is filed.

4. Heard learned counsel appearing for the parties at length.

5. What is argued before this Court by learned counsel for the petitioner is that the presumption available under Sections 118 and 139 of the N.I. Act has been effectively discharged by effective crossexamination of P.W.1. It is argued that the complainant has thoroughly failed to prove that the accused had received a sum of Rs.4.6 lakhs as financial assistance. It is argued that the evidence placed on record would probablize that the accused had received a sum of Rs.1.9 lakhs only as financial assistance and the same was repaid and the cheque marked at Ex.P2 was not returned by the complainant.

Per contra, learned counsel for the complainant has vehemently argued that the presumption available under Sections 118 and 139 of the N.I. Act is not effectively discharged and that the accused has thoroughly failed to probablize the defence taken up on her behalf in regard to receipt of Rs.1.9 lakhs only as financial assistance and the cheque marked at Ex.P2 was given only as a security for availing Rs.1.9 lakhs. It is argued