The presumption of cheque issuance for a legally enforceable debt under Section 138 of the N.I. Act was not rebutted by the accused, leading to conviction.

ORDER :

(G. Basavaraja, J.)

This revision petitioner had preferred this revision petition against the judgment of conviction and order of sentence passed by the XXII Additional Chief Metropolitan Magistrate, Bangalore City in C.C.No.10589/2015 dated 25.02.2016 (for short hereinafter referred as 'trial Court'), which is modified by the LXIII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.306/2016 dated 13.03.2017 (for short hereinafter referred as 'Appellate Court').

2. The rank of the parties in this petition are referred to as per their status before the trial Court.

3. Brief facts of the complainant's case are that:

The complainant and accused are known to each other. The accused being the owner/proprietor of Sri Ganesh Travels situated at Nagasandra circle, Basavanagudi, Bangalore, taking undue advantage of the friendship, the accused approached the complainant during the month of July, 2012 for financial assistance of Rs.2,00,000/- for the purpose of day to day necessities and also to improve his travels business. The complainant understood the difficulties and paid a sum of Rs.2,00,000/- as a hand loan by way of cash on 30-08-2012. At time of receiving the said amount, the accused has executed a debt agreement dated 30-08-2012 in favour of the complainant and he also assured to the complainant that he will repay the said amount within six months to one year only. After completion of six months, complainant had approached and demanded the accused to repay the said hand loan amount but the accused postponed the same to one or the other pretext. After repeated requests and demands made by the complainant finally he got issued cheque bearing No.127313 dated 11-02-2015 drawn on ICICI Bank Limited, Jayanagar branch, Bangalore for a sum of Rs.2,00,000/-. The complainant presented the said cheque for collection but the said cheque returned with an endorsement Drawers signature differs dated 13-2-2015. The complainant informed the accused about the return of the said cheque and to the said information, the accused had taken back the said cheque and issued another post dated cheque bearing No. 127315 dated 27-2-2015 for a sum of Rs.2,50,000/- drawn on ICICI Bank Limited, Jayanagar branch, Bangalore. The complainant presented the above said cheque for collection on 27-2-2015 through his bank of ICICI Bank, Chemrajpet branch. But the above said cheque also returned dishonoured with shara as funds insufficient vide endorsement dated 28-2-2015. Thereafterwards, the complainant got issued legal notice on 11-03-2015 to both residential address and office address of accused, calling upon the accused to pay the cheque amount. The notice sent by RPAD was served to the accused. Inspite of receipt of legal notice, he did not replied or complied the notice. Thus, accused has committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act').

4. After cognizance, case was registered in C.C.No.10589/2015, summons was issued to the accused and in response to the same, accused appeared before the Court and contested the case by denying the entire case of complainant at the time of recording of plea of accusation.

5. To prove the guilt of the accused, the complainant- Naveen Kumar examined himself as PW.1 and got marked 18 documents as Exs.P1 to P18. On closure of complainant side evidence, statement of accused under Section 313 of Cr.P.C. was recorded. Accused had totally denied the entire case of complainant and in support of his denial, he chosen to adduce oral evidence as DW.1 and got marked one document i.e., statement of account as Ex.D1.

6. On hearing the arguments on both sides, the trial Court convicted the accused for the commission of offence punishable under Section 138 of the N.I.Act and sentenced to pay a fine of Rs.1,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of one month and the complainant was awarded compensation of Rs.5,00,000/-