The presumption of cheque issuance under Section 139 of the Negotiable Instruments Act shifts the evidential burden to the accused, who must rebut it to avoid conviction.

ORDER :

(SHIVASHANKAR AMARANNAVAR, J. )

This Criminal Revision Petition is directed against the judgment dated 07.03.2022 passed in Crl.A.No.25122/2020 by the LXXIII Additional City Civil and Sessions Judge, Bengaluru wherein conviction of the petitioner by judgment dated 18.05.2020 passed in C.C.No.54173/2018 by the XXXIV Additional Chief Metropolitan Magistrate, Bengaluru for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I Act” for brevity) has been affirmed.

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

3. The case of the respondent –complainant before the trial Court is that the petitioner –accused was personally known to him. The petitioner –accused approached the respondent –complainant during the first week of August -2016 and asked hand loan of Rs.2,50,000/- (rupees Tow Lakhs Fifty Thousand only) for her urgent business commitments and promised to repay the same within a year. The respondent –complainant has paid Rs.2,50,000/- (rupees Tow Lakhs Fifty Thousand only) on 17.08.2016 in cash. The petitioner –accused failed to repay the amount borrowed even after one year as agreed. On insist, the petitioner has issued cheque bearing No.000036 dated 25.09.2017 for Rs.2,50,000/- (rupees Tow Lakhs Fifty Thousand only) drawn on HDFC Bank, Tippasandra Branch. The complainant presented the said cheque and it came to be dishonoured for a reason “payment stopped” under bank memo dated 04.11.2017. The complainant got issued demand notice dated 25.11.2017 calling upon the petitioner to pay the cheque amount. The notice has been duly served on the petitioner –accused on 29.11.2017. But the petitioner – accused has not paid cheque amount within 15 days. Therefore, the respondent –complainant has initiated proceedings against the petitioner –complainant for offence punishable under Section 138 of the N.I Act.

4. The respondent –complainant in order to prove his case has been examined himself as P.W.1 and got marked documents as Ex.P1 to P8. The statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner -accused has been examined as D.W.1 and got marked documents as Ex.D1 and Ex.D2. The trial Court after hearing arguments on both side and appreciating evidence on record has convicted the petitioner –accused for the offence punishable under Section 138 of the N.I Act and sentenced to pay fine of Rs.3,35,000/- (rupees Three Lakhs Thirty Five Thousand only) and in default to undergo simple imprisonment for a period of 03 months. The said judgment of conviction has been challenged by the petitioner before the Sessions Court in Crl.A.No.25122/2020. The said appeal came to be dismissed on merits and confirmed the judgment of conviction passed by the trial Court.

5. Learned counsel for the petitioner would contend that one Sri Preetham Reddy has borrowed money from the respondent –complainant and for the said transaction, the petitioner has issued cheque for security and it has been misused by the respondent –complainant. The said aspect has been put forth in the reply notice – Ex.P8. The petitioner has produced her bank account statement to establish that she has paid money to the wife and her sister of the respondent. The petitioner has filed complaint against the Preetham Reddy and she did not peruse the same. Without considering all these aspects, learned Magistrate has erred in convicting the petitioner – accused for offence punishable under Section 138 of the N.I Act and the Appellate Court has failed to re – appreciate the evidence on record and affirmed the judgment of conviction passed