The main legal point established in the judgment is the application of the presumption under Section 139 of the N.I. Act and the principles regarding inconsistencies in the amount due and the defense of lost/stolen cheques, as established in the case of Uttam Ram v. Devinder Singh Hudan.

JUDGMENT

H.P. Sandesh, J. - This petition is filed under Section 397 read with Section 401 of Cr.P.C, praying to call for the records and set aside the judgment of conviction and order on sentence dated 20.02.2018 in C.C. No. 54261/2014 passed by the LVII Additional ACMM, Bengaluru and the judgment and order dated 29.11.2018 in Criminal Appeal No. 25038/2018 passed by the IV Additional City Civil & Sessions Judge, Bengaluru and grant such other relief as deems fit in the facts and circumstances of the case.

2. Heard the learned counsel appearing for the petitioner and the learned Counsel appearing for the respondent.

3. The factual matrix of the case of the complainant is that the accused/revision petitioner has sought financial assistance of Rs. 2,00,000/- on 23.01.2014 for his domestic problem and business. The complainant advanced a sum of Rs. 2,00,000/- in cash on 24.01.2014. The accused assured to repay the said amount within a month and issued a cheque. When the cheque was presented, the same was returned with an endorsement as "Insufficient Funds". Thereafter, a legal notice was issued to the accused. In spite of service of notice, the accused failed to comply with the notice and not come forward to pay the cheque amount. Hence, a private complaint was filed and cognizance was taken.

4. The complainant in order to substantiate her contention examined herself as P.W. 1 and got marked the documents Exs. P1 to P6. The accused also examined himself as DW. 1 and got marked the document as Ex. D1.

5. The Trial Court after considering both oral and documentary evidence placed on record convicted the petitioner herein and sentenced to pay a fine of Rs. 5,000/-. In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of three months. Acting under Section 357 of Cr.P.C, the compensation is awarded and the accused shall pay compensation of Rs. 3,46,000/- to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment for a period of one year. Being aggrieved by the said judgment of conviction and order on sentence, an appeal was filed in Crl.A. No. 25038/2018. The Appellate Court on re-appreciation of evidence comes to the conclusion that Ex. P1 is admitted by the petitioner herein and taken note of Exs. P2 to P6 by drawing the presumption under Section 139 of the N.I. Act, confirmed the order of the Trial Court. Hence, the present revision petition is filed before this Court.

6. The main contention of the learned counsel appearing for the petitioner before this Court is that the Trial Court has committed an error in not considering the factors like the awarding reasonable opportunity to cross-examine the complainant in order to rebut the presumption which was not being given to the petitioner when an application is filed before the Trial Court for further examination of the witness and the same was rejected. The learned counsel also would submit that the complainant was not having any financial capacity to pay the amount of Rs. 2,00,000/-. In spite of it, the Trial Court has convicted the petitioner. The complainant has not discharged his initial burden. Hence, ought to have acquitted the petitioner. The Trial Court committed an error by venturing in to compare the signatures that too when the signatures are disputed and in the absence of obtaining the expert opinion it ought not to have held that the petitioner guilty by assuming the things which clearly shows the Trial Courts have not acted judiciously. Hence, it requires an interference of this Court.

7. Per contra, the learned counsel appearing for the respondent/complainant would submit that P.W. 1 was cross-examined and subsequently an application is filed for recalling for further cross-examination and the same was rejected and attains its finality. The same was not questioned. The Trial Court as well as the Appellate Court both have considered the material available on record. On appreciation of legal eviden