The main legal point established in the judgment is the application of Section 139 of the Negotiable Instruments Act to draw a presumption in favor of the complainant, and the requirement for the accused to raise a probable defense to rebut the presumption.

JUDGMENT :

B. A. PATIL, J.

1. This petition has been filed by the accused being aggrieved by the judgment passed by LXVIII Additional City Civil and Sessions Judge, Bengaluru, in Criminal Appeal No.650/2015 dated 19.11.2015, whereunder the conviction and order of sentence passed by XVIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.10477/2013 dated 6.4.2015 is confirmed.

2. I have heard the learned counsel for the petitioner/accused and the respondent/complainant.

3. The case of the complainant in brief is that accused and complainant were acquainted with each other. In the month of July, 2009, accused borrowed a sum of Rs.11 lakhs as hand loan to meet out his business necessities and he agreed to repay the same within two months. Accused did not pay the said amount as agreed. In order to discharge the said debt on 28.08.2012 accused issued a cheque bearing No.021740 dated 19.3.2013 and when it was presented for encashment it returned dishonoured with endorsement "other reasons" on 20.3.2013. Thereafter, complainant tried to contact the accused, but became in vain. He issued a notice on 16.4.2013. Even within 15 days after service of notice, accused did not pay the said amount and as such a private complaint was filed. Court took cognizance, secured the presence of the accused and his plea was recorded.

4. In order to prove his case, complainant has examined himself as PW.1 and got marked 8 documents. After recording the statement of the accused under section 313 of Cr.P.C. accused has neither led any evidence nor got marked any documents. After hearing, the trial Court convicted the accused under Section 138 of Negotiable Instruments Act. The same was confirmed by the appellate Court.

5. The main grounds urged by the learned counsel for the petitioner/accused are that the trial court has erroneously passed the impugned order without proper reason and evidence. It is his further submission that no proper opportunity has been given to substantiate the case of the accused. The legal notice has not been issued and there is no cause of action to file the complaint. It is his further submission that the complainant is not having a capacity to pay the amount and there exists no legally recoverable debt. On these grounds he prayed to allow the petition and to set aside the impugned order.

6. Per contra, the respondent's counsel contended that the trial Court after considering the evidence and material placed on record has rightly come to a right conclusion. Accused has not led any evidence in order to substantiate his case. He further submitted that an amount of Rs.11 lakhs has been given through account payee cheque to the accounts of the accused. Under such circumstances, accused cannot contend that the complainant is not having any amount to pay the loan. He further submitted that the notice has also been served and the petitioner has not given any reply, under such circumstances a presumption has to be drawn as per Section 139 of the Negotiable Instruments Act. Petitioner has not made out any good grounds to interfere with the judgment of the trial Court. On these grounds he prayed to dismiss the petition.

7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.

8. The first and foremost contention taken up by the learned counsel for the petitioner is that complainant was not having any capacity to lend the amount of Rs.11 lakhs, but the evidence produced clearly goes to show that an amount of Rs.10 Lakhs had been given to the accused through account payee cheque and only Rs.1 Lakh has been paid by cash. Ex.P7 Bank Account extract of Canara Bank clearly goes to show that there is an entry on 25.7.2009 a cheque bearing No.48476 for Rs.10 Lakhs has been encashed by Verna Builders to which the accused is a Managing Partner and he has also issued cheque Ex.P1 as a Managing Partner. During the course of crossexamination accused has not denied