The presumption under sections 139 and 118 of the N.I. Act can establish the offense of cheque bounce, and the accused must rebut this presumption to avoid conviction.

ORDER

1. This revision petition is filed by the petitioner challenging the judgment of conviction and order of sentence dated 04.05.2013 passed in Crl.A.No.492/2012 by the Fast Track-I, Bangalore City, wherein the judgment of conviction and order of sentence passed by XV Addl. Chief Metropolitan Magistrate in C.C.No.14875/2005 dated 19.07.2012 is affirmed, wherein the petitioner was found guilty for the offence punishable under section 138 of the Negotiable Instruments Act, (for short hereinafter referred as 'N.I. Act') and was sentenced to pay a fine of Rs.1,50,000/-, in default to undergo simple imprisonment for four months.

2. The complainant filed a complaint before the trial court alleging that the complainant and the accused are known to each other for past 10 years. In the month of April 2003, the accused approached the complainant for financial help and borrowed a hand loan of Rs.45,000/- in the first week of April 2003 and promised to repay the said amount within two years. Again the accused borrowed a hand loan of Rs.70,000/- and Rs.25,000/- from the complainant in month of July 2004. Thereafter, the accused issued two cheques dated 10.08.2004 for Rs.1,20,000/- and Rs.20,000/- dated 12.08.2004 drawn on Sri. Tyagarajanagar Co-operative Bank, N.R. Colony, Bengaluru. The accused promised that he would raise loan from the bank and repay the amount and requested the complainant to present the cheques after due date. As per the instructions of the accused, the cheques were presented through his banker-Corporation Bank, N.T. Road, Bangalore on 12.08.2004, but the cheque was returned with an endorsement 'insufficient funds' in the account'. The accused again requested the complainant to present the cheque, again it was returned with an endorsement 'insufficient funds'. Therefore, inspite of intimation, when the amount was not paid, the complainant issued legal notice dated 06.12.2004 demanding the amount. Accused refused to receive the said notice and it was returned with shara 'not claimed'.

Notice was sent through under certificate of posting also. As the amount was not repaid by the accused, the complainant presented a complaint to the Court.

3. Thereafterwards, the complainant got examined himself as PW-1 and got marked nine documents as Exs-P1 to P9. Then the statement of the accused as required under section 313(1)(b) Cr.P.C. was recorded wherein the accused has denied the evidence in toto and the accused led defence evidence as DW-1 and got marked five documents as Ex-D1 to Ex-D5. After hearing the arguments, learned magistrate found the accused guilty and convicted the accused. Aggrieved by the same, the accused preferred criminal appeal, which also came to be dismissed by the impugned order which is now challenged before this Court.

4. I have heard learned counsel for the petitioner Sri. Suresh Subbaiah and Sri. C.P. Dhananjaya, learned counsel for the respondent.

5. Learned counsel for the petitioner argued that earlier there were cases filed by the daughter of the complainant wherein this complainant himself represented her as Power of Attorney Holder. In that case, there is an order of conviction. Infact, according to the learned counsel, the two cheques in question were issued in favour of the complainant in relation to C.C.No.36118/2002. Learned counsel further argued that though the complainant had received the amount, but receipt is obtained only in respect of Rs.1.00 lakh and for the remaining amount, receipt was not received by the accused and the other case ended in conviction. Therefore, he preferred criminal appeal which also came to be dismissed. Therefore, learned counsel argued that when the relationship of the complainant and the accused is strained and when there is also conviction order hanging on him, question of the petitioner requesting the complainant to pay the amount does not arise. Infact, the petitioner has led his defence evidence and produced the receipt. The complainant even went to the extent