The main legal point established in the judgment is the presumption under Section 139 of the NI Act and the principles of unjust enrichment under Section 65 of the Indian Contract Act.

JUDGMENT

K.S.Mudagal, J. - This revision petition is filed by the accused challenging the judgment and order of conviction and sentence for the offence punishable under Section 138 of Negotiable Instruments Act, 1988 ('the NI Act' for short) passed by the trial Court and confirmed by the First Appellate Court.

2. Respondent was the complainant and the petitioner was the accused before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.

3. The complainant presented Cheque Ex.P.2 for Rs.34,00,000/- drawn on Canara Bank said to be issued by the accused in his favour for encashment. That was dishonoured as per memo Ex.P4 with the endorsement "payment stopped by the drawer". The complainant issued notice Ex.P5 calling upon the accused to pay the Cheque amount.

4. Acknowledgment regarding delivery of notice was not received. Therefore, the complainant's counsel corresponded under Ex.P7 to the Post Master to clarify about the status of the delivery of the notice. Under reply Ex.P8 dated 22.09.2008 the Senior Superintendent of Post Office, Bengaluru East informed that the article/notice was delivered on the addressee on 07.08.2008.

5. Thereafter the complainant filed the complaint in PCR No.11476/2008 before the XIV Additional Chief Metropolitan Magistrate, Bengaluru against the accused to prosecute him for the offence punishable under Section 138 of the NI Act.

6. The complainant alleged that under the memorandum of sale agreement dated 09.02.2007, the accused agreed to sell his lands bearing Sy.Nos.27/1 measuring 1 acre 51/2 guntas, 27/2 measuring 371/2 guntas and 28/2 measuring 1 acre 71/2 guntas of Doddappanahalli village, Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District. He further alleged that the accused received advance consideration of Rs.24,00,000/- on different dates by cash and cheques, but to cheat the complainant, the accused sold the properties to third parties. He further alleged that when complainant questioned, the accused agreed to pay a sum of Rs.34,00,000/- and towards that liability and issued the Cheque in question which was dishonoured as aforesaid. Thus he sought to prosecute the accused for the offence under Section 138 of the NI Act.

7. The trial Court after taking cognizance summoned the accused. He did not plead guilty. Therefore, trial was conducted. The complainant got himself examined as PW.1 and got marked Exhs.P1 to P8. The accused after his examination under Section 313 of Cr.P.C. got himself examined as DW.1 and got marked documents at Exs.D1 to D5.

8. In the cross examination of PW.1 the accused disputed the sale agreement - Ex.P1, issuance of Cheque Ex.P2, service of notice Ex.P5 and claimed that the owner of the land is the mother of Haseena Bi and the land was granted to him under the Karnataka Land Reforms Act. He contended that Haseena Bi challenged the grant order before the Karnataka Administrative Tribunal ('the KAT' for short) and when the litigation was pending before the KAT, the complainant entered the scene as GPA holder of Haseena Bi and pressurized him to part with the lands. He further contended that when he did not yield, the complainant with the aid of some rowdy elements under coercion obtained the Cheque in question. Thus he claimed that there was no debt due to the complainant.

9. The trial Court on hearing the parties convicted the petitioner for the offence punishable under Section 138 of NI Act and sentenced him to pay fine of Rs.34,50,000/- in default to undergo simple imprisonment for one year. Out of the total fine amount, a sum of Rs.34,40,000/- was ordered to be paid as compensation to the complainant and Rs.10,000/- was ordered to be remitted to the State.

10. The trial Court passed the judgment of conviction and sentence on the following grounds:

i) The accused admits that the Cheque belonged to his account and his signature on the same. But, his defence was that complainant obtai