IMPORTANT POINT
The accused must provide cogent evidence to rebut the presumption of a legally recoverable debt under Section 138 of the Negotiable Instruments Act.

ORDER :

(S. Rachaiah, J.)

This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order of sentence dated 30.08.2017 in C.C.No.51/2016 on the file of the Court of the Civil Judge and JMFC at Turuvekere and the judgment and order dated 04.07.2020 in Crl.A.No.10028/2017 on the file of V Additional District and Sessions Judge, Tiptur seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner/accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'NI Act').

2. The rank of the parties in the Trial Court henceforth will be considered accordingly for convenience.

Brief facts of the case:

3. The accused is said to have borrowed a sum of Rs.55,000/- in the month of September 2012 and agreed to repay the said amount to the complainant within six months. After six months, when the complainant demanded to repay the amount, the accused said to have issued a cheque for a sum of Rs.55,000/-. When the cheque was presented for encashment, it came to be dischonoured with a shara as 'funds insufficient'. On 10.07.2013, the complainant issued a legal notice calling upon the accused to repay the said cheque amount. Inspite of the notice having been served, the accused neither repaid the amount nor replied to the said notice. Hence, a complaint came to be registered by the complainant.

4. To prove the case of the complainant, the complainant examined himself as PW1 and got marked six documents as Exs.D1 to D6. On the other hand, the accused examined himself as DW1 and also got examined DW2 and got marked two documents as Exs.D1 and D2. The Trial Court after appreciating the oral and documentary evidence on record, convicted the petitioner for the offence stated supra. Being aggrieved by the same, the petitioner preferred an appeal before the Appellate Court and the Appellate Court confirmed the judgment of conviction rendered by the Trial Court. Being aggrieved by the same, the petitioner has preferred this revision petition.

5. Heard Sri.Harish Babu K.N, learned counsel for the petitioner and Sri.Prasanna V.R, learned counsel for respondent.

6. It is the submission of the learned counsel for the petitioner that the Courts below grossly erred in not appreciating the fact and also failed to take note of non-service of notice which is required mandatorily in terms of Section 138(b) of the N.I Act.

7. It is further submitted that the respondent has failed to produce any document to show that he has advanced the loan to the accused. Inspite of disproving the existence of a legally recoverable debt, the Trial Court recorded the conviction which requires to be set aside. Making such submission, the learned counsel for the petitioner prays to allow the petition.

8. Per contra, the learned counsel for the respondent justified the judgment of conviction passed by the Trial Court and its confirmation order by the Appellate Court and submitted that in spite of notice having been served to the accused regarding dishonour of cheque, he has not replied to the said notice. Though he has denied the transaction, the signature has not been disputed and admitted that the cheque belongs to him. In the absence of cogent evidence that the loan has not been advanced to him, it cannot be said that the loan transaction has not taken place. Mere denial of the transaction would not be sufficient to rebut the presumption. Therefore, the Courts below have rightly held that the petitioner was found guilty of the offence stated supra. Therefore, the petition deserves to be dismissed. Having said thus, the learned counsel for the respondent prays to dismiss the petition.

9. Having heard the learned counsel for the respective parties and also perused the findings of the Courts below, it is relevant to advert to the facts of the case to ascertain as to whether any perversity or illegality in the findings recorded by the Courts below.

10. It is s