Failure to rebut the presumption under Section 139 of the N.I. Act and lack of presenting a probable defense can lead to conviction under Section 138 of the N.I. Act.

ORDER

1. This Criminal Revision Petition under Section 397 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed by the petitioner challenging the judgment and order of conviction and sentence passed by the Court of XIV Addl. C.M.M, Bengaluru (for short the 'Trial Court) in C.C.No.27573/2012 dated 13.03.2014 and the judgment and order passed by the FTC-3, Mayo Hall Unit, Bengaluru (for short the 'Appellate Court') in Crl.A.No.25055/2014 dated 22.08.2014.

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

3. Brief facts as revealed from the records that would be necessary for the purpose of disposal of this revision petition are, the respondent - complainant had filed a private complaint before the Trial Court under Section 200 of Cr.P.C., against the petitioner herein for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, the 'N.I. Act') alleging that the petitioner had borrowed a sum of Rs.3,00,000/- from the respondent for the purpose of business and towards repayment of the same, she had issued a cheque bearing no.475809 dated 01.08.2012 in favour of the respondent for Rs.3,00,000/-. The said cheque on presentation for realization was dishonoured with the Bank endorsement "Funds insufficient" and therefore the respondent had issued a statutory demand notice to the petitioner which was duly served on her. However, the petitioner had not replied to the same nor has she paid the cheque amount. Under the circumstance, the respondent had filed private complaint against the petitioner, based on which a case in C.C.27573/2012 was registered against the petitioner before the Trial Court.

4. In the said proceedings, the petitioner after service of summons had appeared before the Trial Court and pleaded not guilty. To substantiate his case, the respondent-complainant had examined himself before the Trial Court as PW.1 and also got marked 7 documents as Exs.P1. to P7. The petitioner - accused having denied the incriminating circumstances available on record against her during the course of Section 313 of Cr.P.C., statement had led defence evidence and examined herself as DW.1 and got marked 11 documents as Exs.D1 to D11. The Trial Court thereafter heard the arguments addressed on both sides and by its judgment and order dated 07.10.2013 convicted the petitioner for the offence punishable under Section of 138 of N.I. Act and sentenced her to undergo Simple Imprisonment for 3 months and under Section 357(3) of Cr,P.C, the petitioner was directed to pay compensation/fine of Rs.4,10,000/-. The appeal filed by the petitioner against the said judgment and order of conviction and sentence in Crl.A.No.25055/2014 was dismissed by the appellate Court vide its judgment and order dated 22.08.2014. It is under these circumstances, the petitioner is before this Court in this revision petition

5. Learned counsel for the petitioner submits that the cheque in question was issued by her to her brother-in-law Shambaiah. He submits that the said Shambaiah had handed over the same to the respondent who had misused the said cheque. He submits that the petitioner is not liable to pay any amount to the respondent and the respondent has failed to establish before the Trial Court that he had sufficient means to pay sum of Rs.3 lakhs to the petitioner. He also submits that the Trial Court as well as the Appellate Court have erroneously held that the petitioner had not rebutted the presumption and they have failed to appreciate the documents produced by the petitioner in support of her defence. In support of his case, he has relied upon the judgments of the Hon'ble Supreme Court in case of JOHN K JOHN V. TOM VARGHESE & ANR - 2007 (12) SCC 714, K. SUBRAMANI V. K. DAMODARA NAIDU- 2015(1) SCC 99, JUGESH SEHGAL V. SHAMSHER SINGH GOGI - 2007(14) SCC 683, BASALINGAPPA V. MUDIBASAPPA - AIR 2019 SC 1983, ING VYSYA BANK LTD. & ANR., V. STATE OF RAJASTHAN & ANR., - CRIMINAL APPEAL