The petitioner's failure to rebut the presumption under Section 139 of the Negotiable Instruments Act led to upholding his conviction for dishonor of cheque due to insufficient funds.

ORDER :

Shivashankar Amarannavar, J.

This revision petition is directed against the judgment dated 25.10.2022 passed in Crl.A.No.43/2022 by the II Additional District and Sessions Judge at Chikkamagaluru where under the judgment of conviction of the petitioner dated 20.01.2022 by the Prl.Senior Civil Judge and CJM, Chikkamagaluru convicting the petitioner for the offence under Section 138 of the N.I.Act has been affirmed.

2. Heard learned counsel for the petitioner and learned counsel for the respondent.

3. The case of the complainant was that he has supplied materials to the petitioner-accused worth Rs.2,35,044/- under bill No.053 dated 30.09.2018 and accused has issued two cheques of Rs.85,000/- each dated 30.08.2018 bearing Nos.768736 and 768737 drawn on Kaveri Grameena Bank, Chikkamagaluru. The complainant presented the said cheques for encashment and the said cheques came to be dishonoured under bank memo dated 22.11.2018 with reason “funds insufficient”. The complainant got issued legal notice on 28.11.2018 and it has been served on the accused on 04.12.2018. Inspite of the said notice the petitioner – accused has not paid the amount of cheques within 15 days and therefore, the complainant has initiated proceedings against the petitioner-accused for the offence under Section 138 of the N.I.Act.

4. The complainant has examined himself as PW.1 and got marked Exs.P1 to P8. The statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner has not led any defence evidence. Learned Magistrate after hearing the arguments on both the sides has convicted the petitioner for the offence punishable under Section 138 of the N.I.Act and sentenced to pay fine of Rs.2,20,000/- and in default to undergo simple imprisonment for six months. The said judgment of conviction has been challenged before the Sessions Court in Crl.A.No.43/2022 and the same came to be dismissed on merits affirming the judgment of conviction passed by the trial Court.

5. Learned counsel for the petitioner would contend that the petitioner – accused has taken the defence that he had given blank signed cheques to one Praveen and he has misused the same through this complainant and he had no transaction with the complainant. He submits that the complainant has not produced any document to show the transaction. Without considering these aspects, the trial Court has convicted the petitioner-accused and appellate Court has dismissed the appeal filed by the petitioner-accused.

6. Having heard learned counsel, the Court has perused the impugned judgments and trial Court records.

7. It is the specific case of the complainant that in order to pay the amount for materials supplied the petitioner–accused has issued two cheques for Rs.85,000/- each. The accused has admitted his signature on the cheques and therefore, presumption has to be drawn under Section 139 of the N.I.Act that the cheques are issued for discharge of liability. The said presumption is a rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probability.

8. The petitioner-accused has not got issued any reply to the legal notice putting forth his defence. In the cross-examination of PW.1, the petitioner-accused has taken up the defence that his signed cheques given to Praveen have been misused through this complainant. The said suggestion put to PW.1 in his cross-examination has been denied. What is admitted by PW.1 is that this petitioner-accused has been introduced by the said Praveen who is a police official. There is no any suggestion for what transaction the petitioner – accused has given the said