The main legal point established in the judgment is that the presumption under Section 139 of the N.I. Act can be rebutted by showing doubts about the existence of a legally enforceable debt, such as the lack of financial capacity of the complainant and the absence of prior permission for the loan by a public servant.

ORDER :

The present petitioner as the accused was tried by the Court of the XX Additional Chief Metropolitan Magistrate : at Bangalore City, (hereinafter for brevity referred to as “the Trial Court”), in Criminal Case No.30677/2005, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as “the N.I. Act”) and was convicted for the said offence by its judgment of conviction and order on sentence dated 04-06-2009.

Aggrieved by the same, the accused preferred a Criminal Appeal, in the Court of the Presiding Officer, Fast Track Court-II, Bangalore, (hereinafter for brevity referred to as “the Sessions Judge’s Court”) in Criminal Appeal No.498/2009.

The appeal was contested by the respondent who was the complainant in the Trial Court. The Sessions Judge’s Court in its judgment and order dated 08-03-2012, dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 04-06-2009 in C.C.No.30677/2005.

Aggrieved by the impugned judgments of conviction and order on sentence passed by both the Courts, the accused has preferred this revision petition.

2. The summary of the case of the complainant in the Trial Court was that, the complainant and the accused are known to each other since about 20 to 25 years. They are relatives by blood. During the month of August-2004, the accused borrowed hand loan of a sum of Rs.95,000/- from the complainant, to meet his family commitments, and had agreed to repay the said loan amount within four to five months, together with interest thereupon at the rate of Rs.2% per month. In that regard, the accused had issued postdated cheque bearing No.793847 dated 15-01-2005, for a sum of Rs.95,000/-, drawn on Syndicate Bank, Puttanachetty Road, Bangalore, in the month of January-2005. As advised by the accused, the complainant presented the said cheque for its encashment, however, the same came to be returned with the banker’s endorsement “Funds insufficient”. Thereafter, the complainant got issued a legal notice dated 28-06-2005 to the accused, both under the Registered Post Acknowledgment Due (RPAD) and Under Certificate of Posting (UCP). Upon receipt of the legal notice, the accused sent a reply through his counsel, denying the liability of the cheque amount. Since the accused did not pay the cheque amount, the complainant was constrained to file a criminal case against him in C.C.No.30677/2005, in the Trial Court, for the offence punishable under Section 138 of the N.I. Act.

3. The accused appeared in the Trial Court and contested the matter through his counsel. He pleaded not guilty and claimed to be tried, as such, the Trial Court proceeded to record the evidence. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-10 and closed his side. The accused got himself examined as DW-1 and got marked documents from Exs.D-1 to D-7, in his support.

4. The Trial Court, after recording the evidence led before it and hearing both side, by its impugned judgment of conviction and order on sentence dated 04-06-2009 convicted the accused for the offence punishable under Section 138 of the N.I. Act and ordered him to pay a fine of Rs.1,10,000/- and in case of default of payment of the fine amount, he was ordered to undergo Simple Imprisonment for a period of six months.

As observed above, Challenging the impugned judgments of conviction and order on sentence passed by the Trial Court as well the Sessions Judges Court, the accused has preferred this revision petition.

5. Learned counsel for the revision petitioner (accused) and learned Amicus Curiae for the respondent/ complainant are appearing physically in the Court.

6. The Trial Court and Sessions Judge’s Court’s records were called for and the same are placed before this Court.

7. In view of the fact that the learned counsel for the respondent/complainant failed to appear before this Court on several dates o