IMPORTANT POINT
A cheque issued for a loan is enforceable under Section 138 unless effectively rebutted, even if the lender lacks a money lending license.

ORDER :

V Srishananda, J.

Heard Sri.Chethan A. C., learned counsel for the revision petitioner. None present on behalf of the respondent.

2. The present revision petition is filed by the revision petitioner challenging the order of conviction and sentence passed in CC NO.17696/2013 dated 07.11.2017 on the file of XX Additional Chief Metropolitan Magistrate, Bengaluru which was confirmed in Criminal Appeal No.1693/2017 dated 31.05.2021 on the file of LXIX Additional City Civil and Sessions Judge, Bengaluru (CCH 70) for the offence punishable under Section 138 of the Negotiable Instruments Act.

3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:

3.1. Respondent launched a criminal prosecution against the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act by contending that accused approached the complainant for hand loan in a sum of Rs.15,00,000/- during January 2006 with an assurance to repay the same.

3.2. Towards repayment, accused passed on cheque bearing No.217882 dated 04.01.2006 drawn on Oriental Bank of Commerce, Sadashivnagar Branch, Bengalore. The said cheque on presentation came to be dishonored with an endorsement ‘funds insufficient’.

3.3. Thereafter, legal notice was issued by the complainant to the accused and same is served on the accused. There was no reply nor compliance to the callings of the legal notice. Therefore, complainant sought for action.

4. The learned Trial Magistrate after taking cognizance, summoned the accused and recorded the plea. Accused pleaded not guilty. Therefore, the trial was held.

5. In order to prove the case of the complainant, complainant got examined himself as P.W.1 and relied on twenty two documents which were exhibited and marked as Exs.P.1 to Ex.P.22 comprising of cheque as Ex.P.1, signature of the accused as Ex.P.1(a), bank endorsement as Ex.P.2, copy of the legal notice as Ex.P.3, postal receipt as Ex.P.4, postal acknowledgement as Ex.P.5, bank statement as Ex.P.6, complaint as Ex.P.7, pronote as Ex.P.8, signature of accused as Exs.P.8(a) and (b), bank statement as Ex.P.9, ledger extract as Ex.P.10, income tax returns as Exs.P.11 to 19, ledger extract as Ex.P.20, certified copy of Cri.Pet.No.2422/2012 and 60/2011 as Exs.P.21 and 22.

6. Detailed cross-examination of P.W.1, did not yield any positive materials so as to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

7. The suggestions made to the complainant that there was an alteration in the date of the cheque wherein, the year of the cheque ‘2009’ has been altered into ‘2010’ is denied by P.W.1. No further proof there on was placed on record by the accused in respect of the alleged alteration of the date.

8. Thereafter, the learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C. wherein, the accused has denied all the incriminatory circumstances.

9. To a specific question that was posed with regard to the liability of the accused, accused has simply denied.

10. Thereafter, accused got examined himself as D.W.1 and one witness on his behalf was examined as D.W.2. In the examination-in-chief of D.W.1, he has stated that in respect of some other transaction that he had with one Manoj Gera, he had issued a blank cheque which has been misused by the complainant.

11. It is also deposed by him that the contents of Ex.P.1 was filled up by Manoj Gera and he can identify the hand writing of Manoj Gera in the cheque.

12. It is also pertinent to note that in the examination-in-chief of D.W.1 itself, there was no contentions raised by D.W.1 that the date is altered by the complainant.

13. It is further deposed that Manoj Gera and complainant have colluded and filed a false case. In his cross-examination, he has answered that he has obtained sum of Rs.15,00,000/- as financial assistance through the cheque in the year 2006 from his finance broker namel