The burden of proof lies with the drawer of the cheque to rebut the presumptions under the N.I. Act, and unsubstantiated denials may not absolve the duty to discharge the burden of proof.

JUDGMENT

N.K. Sudhindrarao, J. - This matter is taken up through Video Conference. Heard learned counsel Sri. Sanjay Nair for petitioner who has appeared before the court. Learned counsel Sri. K.A.Ariga for respondent absent.

2. This Criminal Revision petition is directed against the judgment and order dated 27.10.2014 passed by the XVI ACMM, Bengaluru City in C.C.No.14619/2008 and also the judgment and order dated 30.5.2015 passed by the LVI Additional City Civil and Sessions Judge, Bengaluru City in Crl.A.No.1300/2014 and consequently allow the said appeal.

3. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their status and rankings as held by them before the trial court.

4. The case in brief of the complainant is that,

"2. The brief facts of the case of the complainant is that the accused borrowed a sum of Rs.2,00,000/- from the complainant on 16.4.2007 for the purpose of settle with the workers and promised to pay the same on 21.2.2008, accordingly, accused had issued 2 cheques for a sum of Rs.1,00,000/- each, dated 21.2.2008 bearing No.348036 and 348037 drawn on Vijaya Bank, Vijayanagar branch, Bangalore to discharge the said legal liability. The complainant presented the said cheque for encashment through his banker Centurion Bank of Punjab Ltd., Jayanagar branch, Bangalore, but the same was came to be dishonoured with a shara, 'funds insufficient' in the account of the accused. Thereafter, complainant got issued legal notice to the accused through registered post on 13.3.2008, the same was served upon the accused, inspite of it, accused neither reply the said notice nor paid the cheque amount and thereby accused has committed the offence punishable under section 138 of N.I.Act. Hence, this complaint."

5. The trial court took cognizance of the offence, after recording sworn statement of the complainant, criminal case has been registered against the accused for the offence punishable under Section 138 of N.I. Act, issued summons to the accused. Accused entered appearance and resisted the claim of the complainant. Thereafter plea of the accused was recorded, accused pleaded not guilty and came to be tried.

6. During the trial, complainant got himself examined as PW1, got examined one witness as PW2 and got marked 8 documents as Exs.P1 to P8. Thereafter, 313 statement of the accused was recorded. The accused got examined himself as DW1, got examined one witness as DW2 and got produced 19 documents as Ex.D1 to 19.

7. After hearing the parties, learned trial Judge found the accused guilty and convicted him of the offence punishable under Section 138 of N.I. Act and directed him to pay a fine of Rs.2,05,000/- and in default in payment of fine to undergo S.I. for six months. Out of fine amount if deposited complainant is entitled for Rs.2.00,000/- as compensation and balance amount of Rs.5,000/- shall be appropriate to state exchequer.

8. Accused preferred Criminal Appeal No.1300/2014 before the appellate court against the judgment of the trial court. The appellate Judge after hearing the parties, dismissed the appeal on 30-05-2015 and thereby confirmed the judgment and order passed by the learned trial Judge in C.C.No.14619/2008 on 27-10-2014. The same is challenged by the accused in this revision petition.

9. It is submitted by learned counsel for petitioner that there has been a high collusion between the complainant and one Bharath Kumar Shetty. The said Bharath Kumar Shetty is a principal employee of the accused. Earlier complainant was running a concern and accused was offered to take over the same for consideration. However, finally the matter could not materialized.

10. The cheques used by the complainant are nothing but those which were handedover to Bharath Kumar shetty, rather they were stolen and mis appropriated by the complainant with the connivance of Bharath Kumar Shetty. In other words, Bharath Kumar Shetty has helped the complainant to make mis use of the chequ