ORDER :

1. This criminal revision petition is filed by the petitioner/accused under Section 397 of the Code of Criminal Procedure, 1973, for setting aside the judgment of conviction and sentence dated 07.01.2019 passed by the learned Civil Judge and JMFC, Sandur, (hereinafter referred to as the ‘trial Court’) in CC No.621/2016 and upheld by the learned II Additional District and Sessions Judge, Bellary (hereinafter referred to as the ‘first appellate Court’), in Criminal Appeal No.9/2019 dated 30.09.2019 for having convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘NI Act’) and sentenced to undergo imprisonment for one year and to pay fine of Rs.5,000/-in default of payment of fine, to undergo simple imprisonment for one month and ordered that accused shall pay compensation of Rs.30,000/-to the complainant as contemplated under Section 357 of Cr.P.C.

2. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent.

3. The rank of the parties before the trial Court is retained for convenience.

4. The case of the complainant before the trial Court is that the accused had borrowed a loan of Rs.30,000/-from the complainant and to discharge the said loan, he issued a cheque bearing No.958956 dated 30.05.2016 and when the same was presented for encashment, it was dishonoured with an endorsement “funds insufficient” and a legal notice was issued to the accused on 05.07.2016 but the accused gave vague reply. Hence, a complaint came to be filed under Section 138 of NI Act.

After cognizance, the trial Court secured the presence of the accused. The accusation was read over to the accused. He has denied the same and pleaded not guilty. The complainant in support of his case examined himself as PW-1 and got marked 5 documents and after completion of evidence, statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the accused is one of total denial and he himself examined as DW-1. After hearing the arguments, the trial Court found the accused guilty and convicted and sentenced as stated supra. Assailing the same, the accused approached the first appellate Court which also came to be dismissed confirming the judgment of conviction and sentence passed by the trial Court. Hence, the accused is before this Court.

5. Learned counsel for the petitioner contended that the judgment of both the Courts below is not sustainable. There is material contradictions in the evidence of PW-1 and the documents. There is no document produced to show that the amount has been actually borrowed by the accused. The cheque was given to the complainant much earlier to the said date but the same was misused by the complainant and the same is not considered by the trial Court and the first appellate Court. However, the learned counsel alternatively argued that sentence imposed by the trial Court, both, imposing imprisonment as well as fine, is too harsh and disproportionate to the offence committed. Therefore, prayed for modification of the sentence by imposing fine alone.

6. Per contra, the learned High Court Government Pleader supported the judgment of conviction and sentence passed by both the Courts below and contended that the accused borrowed money and issued a cheque which is not in dispute, the signature is also not in dispute. Such being the case, the question of disbelieving the evidence of PW-1 does not arise. Presumption under Section 139 of NI Act is in favour of the complainant. However, there is no illegality committed by both the Courts below in passing the judgment of conviction and sentence. Hence, prayed for dismissing the petition.

7. Upon hearing the arguments of the learned counsel for the parties, and on perusal of the records, it is clear that the relationship between the parties is not in dispute. The accused has also not disputed issuance of cheque to the complainant and the evidence of PW-1 a