Point of Law : Dishonour of cheque - Presumption in favour of the holder is apparent on the face of record. Therefore, it is required to be presumed that cheques in question were drawn for consideration and complainant received it in discharge of an existing debt and onus is shifted on accused, unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to accused

JUDGMENT :

This appeal is filed under Section 378 (4) of the Code of Criminal Procedure, 1973 challenging the judgment dated 30.11.2010 passed by the Additional District and Sessions Judge, Fast Track Court-V, Bengaluru Rural District, Bengaluru, allowing Crl.A.No.23/2009 and setting aside the order of conviction dated 20.02.2009 passed in C.C.No.160/2007 by the Principal Civil Judge (Jr.Dn) & JMFC., Hoskote, acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’ for short) by the Appellate Court reversing the conviction of the Trial Court.

2. The factual matrix of the case is that the complainant and the accused are friends. The accused had requested the complainant to lend hand loan of Rs.70,000/-to meet his urgent financial necessity on first week of October, 2006. The complainant gave an amount of Rs,64,000/-on 15.10.2006 and the accused had promised to repay the said loan within three months but the accused did not repay the same. However, on repeated requests, the accused issued a self cheque dated 21.01.2007 and when the same was presented, it was dishonoured. The complainant got issued legal notice both to his residential address as well as his office address. That in spite of receiving the notice sent under certificate of posting, the accused did not give any reply and hence the complainant was forced to file complaint. The complainant in order to substantiate his contention he himself examined as PW1 and got marked document Exs.P1 to P8. The trial Court, after recording the evidence of the complainant examined the accused under Section 313 of Cr.P.C. The accused also examined himself as DW1 and got marked Ex.D1. The trial Judge, after considering both oral and documentary evidence convicted the accused vide judgment dated 20.02.2009. Being aggrieved by the same, the accused had preferred an appeal in Criminal Appeal No.23/2009 and in the said appeal, the accused was acquitted vide judgment dated 30.11.2010. Being aggrieved, the complainant has filed this appeal.

3. In the appeal, it is contended that the appellate Court failed to appreciate the fact that both complainant and accused are friends and are known to each other and the accused has admitted his signature at Ex.P1(a). Though accused had taken a defence that the cheque was stolen which was kept in his driving school run by him, the same has not been probabilised and the said defence has been taken for the first time before the trial Court without giving any reply to the legal notice and the same is an after-thought defense. It is also contended that no complaint was given by the accused when he came to know about stolen of cheque. The appellate Court also illegally held that the complainant did not prove by documentary evidence that the cheque was written by the accused himself and also failed to draw presumption under Section 139 of the N.I. Act. It is also contended that the appellate Court has observed that the complainant has not demanded interest on the hand loan availed by the accused and as both accused and the complainant were friends, question of concept of collecting interest does not arise and the complainant also has not contended that he lent hand loan for interest. The observations made by the appellate court in paragraphs-12, 14, 17, 25, 39 and 40 are contrary to the facts and also on law and hence, the learned counsel submits that the matter requires interference by this Court.

4. The counsel appearing for the complainant vehemently contends that the accused do not dispute the cheque and the notice sent under certificate of posting was served on him and though notice sent through RPAD to the residential address and also to office address were returned, the accused did not choose to give any reply to the notice of the complainant. The accused has categorically admitted in the cross-examination that the address mentioned in the registered postal covers are correct and the same is not dis