The court held that under Section 139 of the Negotiable Instruments Act, the accused bears the burden to rebut the presumption that a cheque was issued for a valid debt, which he failed to do.

ORDER :

(SHIVASHANKAR AMARANNAVAR, J.)

1. This revision petition is directed against the judgment dated 19.10.2017 passed in Crl.A. No. 118/2016 by the Principal District and Sessions Judge, Chikkamagaluru whereunder the judgment of conviction and order on sentence dated 30.06.2016 passed in C.C. No. 177/2012 by Principal Civil Judge and JMFC at Kadur convicting the petitioner - accused for offence punishable under Section 138 of Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’) and sentencing him to pay fine of Rs.1,45,000/- and in default, to undergo simple imprisonment for a period of

3 months has been confirmed.

2. Heard learned counsel for petitioner – accused and learned counsel for respondent – complainant.

3. It is the case of respondent - complainant that he and accused were known to each other. Petitioner - accused had availed loan of Rs.1,00,000/- from respondent - complainant for financial assistance to discharge the hand loan availed by him for purchase of landed properties. Towards repayment of the same, he had issued cheque dated 04.05.2011 bearing No. 566995 drawn on State Bank of India, Bharath Nagar Branch, Bengaluru, for a sum of Rs.1,00,000/-. Respondent - complainant presented the said cheque for encashment and it came to be dishonoured for the reason `funds insufficient’. Respondent - complainant got issued legal notice on 14.10.2011 and the same has been served on petitioner - accused on 15.10.2011. Petitioner – accused, inspite of service of notice, has not paid the cheque amount. Therefore, respondent - complainant had initiated proceedings under Section 138 of the N.I. Act. Respondent - complainant has been examined as P.W.1 and got marked Ex.P.1 to Ex.P.13. Statement of petitioner - accused has been recorded under Section 313 of Cr.P.C. Petitioner - accused has been examined as D.W.1 and got marked Ex.D.1 to Ex.D.4. The trial Court, after hearing arguments on both sides and on appreciation of evidence on record, has convicted petitioner - accused for offence under Section 138 of N.I. Act. Said judgment of conviction was challenged by petitioner - accused before the Sessions Court in Crl.A. No. 118/2016. Said appeal came to be dismissed on merits confirming the judgment of conviction passed by the trial Court.

4. Learned counsel for petitioner – accused would contend that respondent - complainant is a real estate agent and on his mediation petitioner - accused purchased property under sale deed – Ex.D.1 and regarding the same P.W.1 has admitted that he is one of the signatory to the said sale deed as a witness. He further submits that cheque has been issued as a security for payment of commission for the said sale transaction to the respondent - complainant and subsequently said amount has been paid by cash, but respondent - complainant has not returned the said cheque and he has misused the same. He further submits that petitioner - accused has filed a complaint against respondent - complainant and others and FIR is registered against him. Petitioner – accused, in order to prove his defence, has also let in evidence and stated his defence in his chief-examination. Without considering all these aspects learned Magistrate has erred in convicting petitioner - accused for offence punishable under Section 138 of N.I. Act. The Appellate Court has erred in confirming said judgment of conviction passed by the trial Court.

5. Learned counsel for respondent - complainant would contend that the trial Court, appreciating the evidence on record, has rightly convicted the petitioner and the appellate Court has rightly re-appreciated the evidence confirming the c