The presumption in favor of the holder of a cheque, the importance of providing evidence to substantiate defenses, and the significance of documentary evidence in establishing liability.

JUDGMENT

H.P. Sandesh, J. - This matter is listed for admission. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

2. The factual matrix of the case of the respondent/complainant before the Trial Court is that the petitioner/accused had approached the respondent in the second week of March 2015 and sought for financial help of Rs.5,00,000/- for a period of 20 months. The petitioner also assured him that she would repay the said amount to him with interest at the rate of 1.5% per annum. Believing the words, the complainant paid an amount of Rs.5,00,000/- and the accused had issued the post dated cheque as security for the amount borrowed, but she did not repay the amount with interest. When the cheque was presented, it was returned with an endorsement 'funds insufficient'. The legal notice was issued and the same was served and despite the service of notice, the accused neither replied nor complied with the demand. Hence, complaint was filed. The Trial Court took the cognizance and the complainant examined himself as P.W.1 and got marked the documents at Exs.P.1 to 8. The learned counsel for the petitioner cross-examined P.W.1, but not led any defence evidence. The Trial Court after considering both oral and documentary evidence placed on record, convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments act ('NI act' for short) and sentenced to pay fine of Rs.5,25,000/-. In default of payment of fine to undergo simple imprisonment for a period of one year. Being aggrieved by the judgment of conviction, an appeal is filed in Crl.a.No.850/2019 and the appellate Court on re-consideration of both oral and documentary evidence placed on record, dismissed the appeal. Hence, the present revision petition is filed before this Court.

3. The learned counsel for the petitioner would vehemently contend that it is elicited that the handwriting and the signature in the cheque are in different handwriting and apart from that, specific defence was taken before the Trial Court that the complainant was not having the capacity to lend an amount of Rs.5,00,000/-. The learned counsel submits that cheque was issued in respect of the chit transaction and the documents which have been relied upon by the complainant for having withdrawn the amount is only to the tune of Rs.1 lakh and odd and not Rs.5,00,000/-, which was allegedly lent in favour of the petitioner. This aspect has not been considered by the Trial Court and hence it requires interference of this Court and the matter has to be admitted.

4. Per contra, the learned counsel for the respondent would submit that the signature on the cheque is not disputed. The only dispute before the Trial Court is that while cross-examining P.W.1, it is stated that the cheque was given in connection with the chit transaction and in order to prove the said fact, not led any rebuttal evidence. The same has been considered by the Trial Court as well as the appellate Court. The learned counsel brought to the notice of this Court the findings of the Trial Court in paragraph Nos.21 to 27 wherein it is discussed with regard to the issuance of the cheque and no defence evidence has been led. The learned counsel brought to the notice of this Court the re-appreciation made by the appellate Court with regard to the evidence available on record, particularly in paragraph No.4 considering the grounds urged in the appeal memo and also the reasoning given in paragraph Nos.9 to 16 and so also paragraph No.18 with regard to purport and object of NI act and dismissed the appeal. Hence, the learned counsel would contend that there is no merit to admit the revision petition.

5. Having heard the respective learned counsel and looking into the material available on record, the complainant in order to substantiate the claim, examined himself as P.W.1 and got marked the documents at Exs.P.1 to 8. admittedly, legal notice was served on the petitioner in terms