The presumption of a cheque being issued in discharge of a legally enforceable debt can be rebutted by the accused, and the burden lies on the complainant to prove the existence of such a debt.

JUDGMENT

1. This revision is filed by the revision petitioner / accused challenging the judgment of conviction and order of sentence passed by XIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.15562/2015 and confirmed by LXVI Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.870/2016.

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

3. The brief factual matrix leading to the case are as under:

That the complainant and the accused are cousins and in view of the said acquaintance, the accused had approached the complainant for financial assistance of Rs.4, 50, 000.00 as a hand loan for his father's medical treatment and to clear the loan. The said loan was advanced by complainant on 26/12/2012 and accused promised to repay the same within six months. In between it is asserted that complainant got transferred to Pune and was not able to repay the loan amount and agreed to pay the same within 15 months in monthly Rs.30, 000.00 installment by issuing 15 post dated cheques bearing Nos.000026 to 000040 of HDFC Bank, BTM layout II Stage, Bangalore. The said cheques were presented for encashment, but 9 cheques were honoured and other cheques from 000035 to 000037 were bounced for reason of insufficient funds. Then the accused promised to pay complainant total sum of Rs.90, 000.00, but never repaid the same. He has also requested the complainant not to present the balance cheques 000035 to 000040 asserting that he will pay entire due of Rs.1, 80, 000.00 towards these 6 cheques to the complainant.

4. It is further asserted that in the month of October 2014, accused again requested complainant for loan of Rs.6.00 Lakhs to clear standing loan, which he had availed in HDFC Bank, Bangalore and also promised that he will also clear the due of Rs.180000.00 including Rs.6.00 Lakhs. Hence, the complainant has paid another loan of Rs.6.00 Lakhs in favour of accused on 10/12/2014. The accused has assured the complainant of repayment of Rs.6.00 Lakhs and Rs.1, 80, 000.00 by the end of December 2014. Thereafter, he had issued a post dated cheque bearing 000121 dtd. 16/1/2015 for Rs.6.00 Lakhs to the complainant drawn on HDFC Bank, BTM Layout, Bangalore. When the said cheque came to be presented, it bounced for insufficient of funds. The complainant got issued a legal notice and though it is served, the accused did not repay the cheque amount and hence, a complaint came to be lodged.

5. On the basis of the complaint, the learned Magistrate has taken cognizance of the offence and issued process against the accused. The accused has appeared and was enlarged on bail. The plea under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act' for short) was recorded and he denied the same.

6. The complainant was examined as PW1 and he placed reliance on 11 documents marked at Ex.P1 to Ex.P11. After conclusion of the evidence of the complainant the statement of the accused under Sec. 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the complainant. The case of accused is of total denial. He also got examined himself as DW1 and placed reliance on Ex.D1 to Ex.D8.

7. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Sec. 138 of N.I. Act by imposing sentence of fine of Rs.8.00 Lakhs.

8. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached LXVI Additional City Civil and Sessions Judge in Crl.A.No.870/2016. The Learned Sessions Judge after reappreciating the oral and documentary evidence dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Against these concurrent findings, the accused / revision petitioner is before this court by way