The failure to rebut the presumption under Sec. 139 of the Negotiable Instruments Act can lead to conviction under Sec. 138 of the Act.

JUDGMENT/ORDER

1. The petitioner has challenged the judgment of conviction dtd. 12/3/2015 passed by the XXI Addl. Chief Metropolitan Magistrate, Bengaluru, (henceforth referred to as 'Trial Court' for short) in C.C.No.8700/2013 for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 and consequent sentence to pay fine of Rs.8, 10, 000.00. The petitioner has also called in question the judgment dtd. 4/12/2015 passed by the LIX Addl. City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Appellate Court' for short) in Crl.A.No.595/2015 by which, the judgment of conviction passed by the Trial Court was upheld.

2. The parties shall henceforth be referred to as they were arraigned before the Trial Court. The petitioner was the accused and the respondent was the complainant.

3. The records disclose that the complainant and the accused were known to each other and out of such acquaintance, the accused requested the complainant for a hand loan of Rs.8, 00, 000.00 on 15/7/2012. The complainant sensing the request of the accused to be just, agreed to pay and accordingly, paid a sum of Rs.8, 00, 000.00 on 18/7/2012. The accused had executed an on demand promissory note and consideration receipt in favour of the complainant and passed on a post dated cheque bearing No.120349 dtd. 18/10/2012 for a sum of Rs.8, 00, 000.00 drawn on Corporation Bank, Bengaluru. The said cheque was presented as instructed by the accused. However, it was dishonoured due to insufficient funds on 5/11/2012. The complainant approached the accused and demanded the payment. However, the accused did not pay the amount, which compelled the complainant to cause a notice of demand on 15/11/2012. The notice was served on 17/11/2012, but the accused did not reply nor repay the amount payable under the cheque. The complainant therefore, initiated steps to prosecute the accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act.

4. The Trial Court recorded the pre-summons evidence of the complainant and registered C.C.No.8700/2013 and issued process to the accused and secured his presence. He was released on bail. The substance of the accusation was read over to the accused, who pleaded not guilty and claimed to be tried. The complainant was examined as PW.1 and he examined the Manager of Corporation Bank as PW.2 and a witness, in whose presence he paid Rs.8, 00, 000.00 to the accused as PW.3 and the Chief Manager of Corporation Bank as PW.4. The complainant marked Exs.P1 to P7. The statement of the accused under Sec. 313 of Cr.P.C. was recorded and he denied the incriminating evidence against him. He was examined as DW.1.

5. Based on the oral and documentary evidence, the Trial Court held that the accused was unable to establish his defence that he did not know the complainant and that his brother-in-law had raised a loan from the complainant and that he had given the cheque in question as security for the loan raised by his brother-in-law. He also failed to establish his defence that he used to affix the signatures on the cheque leafs in Kannada and not in English. In order to discredit the testimony of the accused, the complainant examined PW.2 and PW.4, who were the Manager and Chief Manager of Corporation Bank, from where the cheque in question was issued and both of them deposed that the signature on the cheque in question belonged to the accused. The Trial Court held that since the accused claimed that the cheque in question was given as security for a loan raised by his brother-in-law from the complainant, the signature found thereon was indeed the signature of the accused. In view of the above, the Trial Court held that the accused had failed to rebut the presumption under Sec. 139 of the Negotiable Instruments Act and since the cheque in question was dishonoured due to insufficient funds, the accused had committed an offence punishable under Sec. 138 of the Negotiable Instruments Act and consequently,