ORDER :

“Whether the impugned orders of conviction and sentence passed against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 suffer infirmity, incorrectness or illegality”? is the question involved in this case.

2. The respondent prosecuted the petitioner in C.C.No.35723/2009 on the file of XVII Additional Small Causes and XXV Additional Chief Metropolitan Magistrate, Mayohall unit, Bengluru for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).

3. The respondent presented the cheque Ex.P1 dated 12.07.2008 for a sum of Rs.9,50,000/-purportedly drawn by the petitioner on Punjab National Bank, Indiranagar Branch, Bengaluru in his favour for collection through is account in Federal Bank Ltd., K.R.Puram Branch. The same was dishonoured as per the Banker’s memo Ex.P2 dated 13.08.2008 with an endorsement “funds insufficient”. Thereafter, the respondent got issued the statutory notice dated 25.08.2008 as per Ex.P3 to the petitioner alleging that by issuing the cheque without making arrangements for realization of the same, he has committed cheating and called upon him to pay the cheque amount within fifteen days or else to face the prosecution.

4. The notice was sent as per the certificate of posting Ex.P4. As per Ex.P6 postal acknowledgement, the notice was received by one Shakuntala.K. Before the expiry of the statutory limitation, the respondent filed the complaint in P.C.R.No.12206/2008 against the petitioner alleging that by issuing cheque without making arrangements for payment and not paying the same, even after service of statutory notice, the petitioner has committed the offence punishable under Section 138 of the Act.

5. The trial Court on taking cognizance, registered the case in C.C.No.35723/2009. The trial Court summoned the petitioner and tried him. After such trial, on hearing the parties, the trial Court by the judgment and order dated 24.09.2013 convicted the petitioner for the offence punishable under Section 138 of the Act and sentenced him to simple imprisonment for one year and fine of Rs.19,00,000/-. Out of the fine amount, the trial Court awarded Rs.18,50,000/-as compensation to the respondent.

6. The petitioner challenged the said judgment and order before LVII Additional City Civil & Sessions Judge, Mayohall Unit, Bengaluru (CCH-58) in Crl.A.No.25138/2013. The First Appellate Court on hearing the parties, by the judgment and order dated 23.04.2016 dismissed the appeal and confirmed the judgment and order of sentence of the trial Court.

7. Before the trial Court, the prime defence of the petitioner was as follows:

(i) The petitioner was not due to pay any amount to the respondent;

(ii) There was enimity between the petitioner and one Balakrishna, Counsellor and the petitioner’s brother Mohan. Due to such ill-will, those persons committed theft of the signed cheque and handed over the same to the respondent herein to falsely implicate him in the case; &

(iii) The statutory notice was not served on him.

8. The trial Court and the First Appellate Court held that once the petitioner admits his signature on the cheque and that the cheque pertains to his account, Section 139 of the Act confers presumption that the cheque was issued to discharge the debt or liability and the petitioner has failed to rebut the said presumption.

9. Sri K.Nagendra Kumar, learned Counsel for the petitioner reiterating the defence raised before the trial Court seeks to assail the impugned orders of conviction and sentence on the following grounds:

(i) DW.1 in his deposition states that he does not know on whom the notice was served and that the postal acknowledgement does not bear his signature. Therefore, the Courts below were in error in holding that the notice was served on the petitioner and there was compliance of statutory requirement of Section 138 of the Act;

(ii) Lending capacity of the respondent was not proved;

(iii) The Courts below we