The court reaffirmed that the burden of proof lies on the accused to rebut the presumption of service of legal notice and that a cheque issued in discharge of a legally enforceable debt constitutes an offence under Section 138 of the NI Act.

ORDER

Rajesh Rai K, J.

In this revision petition, the petitioner/accused has challenged the legality and the correctness of the judgment and order dated 10.08.2016 passed by the LVIII Additional City Civil and Sessions Judge, Bengaluru City in Crl.A.No.920/2015, wherein learned Sessions Judge dismissed the appeal filed by the petitioner and confirmed the judgment and order dated 07.07.2015 passed by the XVIII ACMM Court, Bengaluru in C.C.No.21516/2009.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court i.e., the revision petitioner as accused and the respondent as complainant.

3. The factual matrix of the case, in brief, is as follows:

The respondent/complainant filed a private complaint under Section 200 of Cr.P.C. praying to take cognizance of the offence punishable under Section 138 of NI Act against the accused alleging that the accused and the complainant have entered into an agreement for sale dated 05.01.2007 in respect of site No.19 situated at Chandranahalli comprised in Survey No.40 of Sompura Hobli, Nelamangala Taluk, Bengaluru Rural District.

4. It is further case of the complainant that at the time of entering into the said agreement with the accused, he had paid advance amount of Rs.2,50,000/- to the accused and subsequently, due to misunderstanding between them, the said sale transaction was not complete. Therefore, the accused had issued a cheque dated 26.11.2008 for a sum of Rs.2,50,000/-drawn on Andhra Bank, Siddartha Public School and College, Bengaluru in favour of the complainant towards repayment of advance sale consideration. Accordingly, he presented the said cheque for encashment, but the same was returned unpaid with an endorsement 'Funds Insufficient'. Thereby, he got issued legal notice dated 05.06.2009 to the accused calling upon him to make payment of the cheque amount. The said notice sent through registered post so also under certificate of posting. The registered post was returned to the sender with an endorsement 'not claimed'. However, notice sent through certificate of posting was served on the accused. Since the accused failed to comply with the legal notice by paying the cheque amount, the complainant filed a private complaint before the trial Court. Subsequently, learned Magistrate took cognizance of the offence and issued summons to the accused. Consequently, the accused entered his appearance and the case tried before the learned Magistrate in C.C.No.21561/2009.

5. In order to prove his case before the trial Court, the complainant examined himself as PW.1 and got marked 9 documents as Exs.P1 to P9. The accused has also examined himself as DW.1, however, he has not got marked any document on his behalf.

6. After analyzing all the evidence and materials, the trial Court convicted the accused for the offence punishable under Section 138 of NI Act and sentenced him to pay a fine of Rs.5,00,000/- and in default to undergo simple imprisonment for one year. It is also directed by the trial Court that out of fine amount of Rs.5,00,000/-, Rs.4,85,000/- has to be paid to the complainant as compensation and Rs.15,000/- shall be defrayed to the State for expenses incurred in the prosecution. The said judgment and order passed by the trial Court was challenged by the accused before the First Appellate Court in Crl.A.No.920/2015.

7. The First Appellate Court, after considering the facts and circumstances of the case so also after re-appreciating the evidence available on record, dismissed the appeal filed by the accused and confirmed the judgment and order passed by the trial Court as stated supra. Hence, this revision petition.

8. I have heard Sri Jayaprakash Shetty.B., learned counsel for the revision petitioner/accused so also Sri Naik Ramachandra Rao, learned counsel for the respondent/complainant.

9. It is the primary contention of the learned counsel for the revision petitioner/accused that the Appellate Court erred while confirming the conviction judg