The presumption under Section 139 of the NI Act can be rebutted by the accused if the complainant fails to provide essential details regarding the loan transaction, affecting the validity of the conviction.

ORDER

1. This revision is filed under Section 397 r/w 401 of Cr.P.C., challenging the judgment of conviction and order of sentence passed in CC.No.1894/2014 dated 09.01.2017 on the file of JMFC (V Court), Mangaluru, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act') and confirmed by I Additional Sessions Judge, Mangalore in Crl.A.No.18/2017 dated 16.07.2019.

2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

3. The brief factual matrix leading to the case are that for urgent financial commitments accused had borrowed a sum of Rs.1,50,000/- from complainant as a hand loan. It is asserted that the accused being friend of complainant, he has paid the said sum and towards repayment the accused has issued the cheque dated 26.07.2014 for Rs.1,50,000/- and when the same was presented, it was dishonored for the reason 'Account closed'. The complainant then got issued a legal notice and the accused did not repay the loan amount and hence, the complaint came to be lodged.

4. On the basis of the complaint, the learned Magistrate has taken cognizance and issued process. Accused has appeared through his counsel and was enlarged on bail. The prosecution papers were also furnished to the accused. He denied the accusation. The complainant has got examined as PW1 and placed reliance on seven documents marked at Exs.P1 to P7.

After conclusion of the evidence of the complainant, the statement of accused under Section 313 Cr.P.C. is recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial. The accused has also got examined himself as DW1.

5. After hearing the arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of the NI Act, and imposed fine of Rs.1,55,000/-. Being aggrieved by this judgment, the accused has approached First Additional Sessions Judge, Mangalore in Crl.A.No.18/2017. The learned Sessions Judge after appreciating the oral and documentary evidence, confirmed the judgment of conviction and order of sentence passed by the magistrate by dismissing the appeal. Against these concurrent findings, this revision came to be filed.

6. Heard the arguments advanced by the learned counsel for the revision petitioner and learned counsel for the respondent. Perused the records.

7. The learned counsel for the revision petitioner contended though the cheque and signature have been admitted, it was pertaining to loan transaction with Umashankar for a sum of Rs.20,000/- and the cheque was issued as a security. He would contend that the complainant has not disclosed the date of advancement of loan and admittedly, he is working in a multi national company and to ascertain as to when he advanced the loan, he had not produced any documents to show that he was on leave or serving in different shifts. He would also contend that no documents have been produced to show that he has availed any permission from the company. He would contend that during the course of the trial, the accused tried to improve his case and his financial status is also not established and hence, he contended that both the Courts below have failed to appreciate this aspect and hence, he sought interference of this Court by allowing the revision by setting aside the impugned judgment and conviction passed by both the Courts below.

8. Per contra, the learned counsel for the respondent would contend that there is no rebuttal evidence lead by the accused and the presumption available in favour of the complainant under Section 139 of the NI Act is not rebutted. He would contend that non mentioning of date of the advancement of loan is not fatal and the accused has not proved his defense and reverse onus is casted on accused which he failed to discharge. Hence,