The presumption under Sec. 139 of the Negotiable Instruments Act is rebuttable, and the burden of proof lies on the complainant to establish the existence of a legally enforceable debt.

JUDGMENT

1. This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order of sentence dtd. 19/2/2015 in C.C.No.15712/2011 on the file of the Court of XVIII Additional Chief Metropolitan Magistrate, Bangalore and its confirmation judgment and order dtd. 27/11/2015 in Crl.A.No.413/2015 on the file of the Court of the LXVI Additional City Civil and Sessions Judge, Bangalore City seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused is convicted for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short ' N.I Act ').

2. The petitioner is the accused before the Trial Court and appellant before the Appellate Court. Brief facts of the case are as under:

3. It is the case of the complainant/respondent that, the complainant and the petitioner/accused are known to each other. Due to the said acquaintance, in the third week of March 2010, the petitioner had asked the respondent to pay a sum of Rs.4, 50, 000.00 to meet his urgent financial commitments and assured that he would pay interest of 2% per month for the said amount and also further assured that, he would repay the said amount within seven months. It is further stated that, when the petitioner did not repay the amount within the stipulated period, the respondent insisted for repayment of the said amount. The petitioner issued a cheque bearing No.992364 dtd. 7/1/2011 drawn on Vijaya Bank, Ganganagar Branch, Bengaluru for the above said sum. When it was presented for encashment, it was returned with an endorsement as 'Insufficient Funds' on 11/1/2011. It is stated that, in spite of legal notice having been received by the petitioner, neither he replied the said notice nor repaid the said amount. Hence, a complaint came to be filed before the Magistrate having jurisdiction.

4. The Trial Court after appreciating the oral and documentary evidence and also after raising the presumption envisaged under Sec. 139 of the N.I Act, convicted the petitioner for the offence under Sec. 138 of the N.I Act and sentenced the petitioner to pay fine of Rs.4, 70, 000.00, in default of payment of fine, ordered to undergo simple imprisonment for one year. Being aggrieved by the same, the petitioner preferred an appeal before the Appellate Court, the Appellate Court dismissed the appeal by confirming the judgment of conviction passed by the Trial Court.

5. Heard Sri.D.P.Prasanna, learned counsel for the petitioner and Sri.Bhaskar Babu H.J, learned counsel for the respondent.

6. It is the submission of the learned counsel for the petitioner that, the defence set up by the petitioner was not considered by the Courts below. Even though, he is consistent in his evidence that, he has borrowed hand loan of Rs.50, 000.00 from the respondent. The respondent after deducting interest of Rs.1, 500.00, paid the amount of Rs.48, 500.00. It is the contention of the petitioner that, at the time of borrowing the said loan, he had issued the cheque which is in dispute in this case as security for the said amount.

7. It is further submitted that, in spite of having cleared the loan amount, the respondent did not return the cheque and misused the said cheque and filed a criminal case against the petitioner.

8. It is further submitted that, even though the respondent failed to prove that, he had lent the said amount to the petitioner, the Courts below grossly erred in arriving at a conclusion that, the petitioner is guilty of the offence as stated supra. It is further stated that, when the lending capacity of the respondent was questioned, the burden or onus of proof would be shifted on the complainant / respondent to rebut the same. The respondent has not rebutted the presumption by leading any cogent evidence. It is further stated that, even though, it is alleged that, the respondent had lent the amount as stated in the cheque, it was not reflected in the income tax returns of the r