The presumption under Sec. 139 of the Negotiable Instruments Act holds unless rebutted with a probable defense, leading to liability under Sec. 138.

JUDGMENT/ORDER

1. This criminal revision petition is filed by the accused challenging the judgment and order of conviction and sentence dtd. 7/5/2014 passed by the XVIII Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.28496/2000 and the judgment and order dtd. 23/12/2014 passed by the Fast Track Court-V, Bengaluru, in Crl.A.No.558/2014.

2. Heard the learned Counsel for the parties and also perused the material available on record.

3. Facts leading to filing of this revision petition narrated briefly are, the respondent-complainant had filed a private complaint against the petitioner under Sec. 200 Cr.PC for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), contending that the petitioner had borrowed a sum of Rs.2, 25, 000.00 from the respondent for the purpose of constructing a building. Towards discharge of the said amount of Rs.2, 25, 000.00, the petitioner had issued a cheque on 11/10/1999 in favour of the respondent for the aforesaid amount of Rs.2, 25, 000.00, and on presentation of the said cheque for realization, the same was dishonoured with a banker's endorsement 'funds insufficient'. The complainant, thereafter, issued legal notice in compliance of Sec. 138(b) of the Act and since the petitioner had failed to pay the amount covered under the cheque in question inspite of service of notice, a private complaint was filed against the petitioner for the offence under Sec. 138 of the Act.

4. In the said proceedings, the petitioner had appeared before the Trial Court and pleaded not guilty. The complainant, therefore, examined himself as PW-1 and got marked eight documents as Exs.P-1 to P-8. The petitioner who had denied the incriminating circumstances available against him on record during the course of his statement under Sec. 313 Cr.PC, had examined himself as DW-1 in support of his defence and also got marked two documents as Exs.D-1 & D-2. The handwriting expert was examined by the Trial Court as CW-1. The Trial Court by its judgment and order dtd. 7/5/2014 convicted the petitioner for the offence under Sec. 138 of the Act and sentenced him to pay fine of Rs.2, 50, 000.00 and in default to undergo simple imprisonment for a period of one year. The said judgment and order passed by the Trial Court was upheld in Crl.A.No.558/2014 by the Appellate Court on 23/12/2014. It is in this factual background, the petitioner has approached this Court in this revision petition.

5. Learned Counsel for the petitioner submits that the courts below were not justified in convicting the petitioner for the alleged offence. The petitioner has raised a probable defence before the Trial Court which has not been properly appreciated by the courts below, and accordingly, erred in convicting the petitioner for the alleged offence.

6. Per contra, learned Counsel for the respondent has argued in support of the impugned judgment and order of conviction and sentence passed by the courts below and prays to dismiss the petition.

7. The complainant, in order to substantiate his case had examined himself as PW-1 and had got marked eight documents as Exs.P-1 to P-8. Ex.P-1 is the cheque in question which was issued by the petitioner for a sum of Rs.2, 25, 000.00. Ex.P-4 is the copy of the statutory notice issued under Sec. 138(b) of the Act and Ex.P-7 is the postal acknowledgment which would show that the petitioner had received the said notice. The petitioner has not seriously disputed the signature found in the cheque in question. Undisputedly, the cheque in question is issued from the account maintained by the petitioner in State Bank of Mysore, Hospet Branch. Under the circumstances, there is a presumption against the petitioner under Sec. 139 of the Act to the effect that the cheque in question was issued by him to the respondent towards discharge of legally recoverable debt. It is trite that unless the petitioner rebuts the said presumption in accordance with law, by raising a probable d