The conviction under Section 138 of the N.I. Act is justified when the accused fails to rebut the statutory presumption of cheque issuance for discharging a debt, shifting the evidential burden thereafter.

ORDER :

SHIVASHANKAR AMARANNAVAR, J.

This revision petition is directed against the judgment dated 09.08.2017 passed in Crl.A.No.17/2017 by the IV Addl.District and Sessions Judge, Mandya where under the judgment of conviction of the petitioner dated 07.02.2017 passed in C.C.No.178/2013 by the I Additional Civil Judge and CJM, Mandya convicting the petitioner for the offence under Section 138 of the N.I.Act and sentencing him to undergo simple imprisonment for six months and to pay fine of Rs.7,20,000/- has been affirmed.

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

3. The case of respondent/complainant before the trial Court was that he and petitioner/accused were known to each other and petitioner/accused who was in need of money for his business borrowed Rs.3,60,000/- from respondent/complainant on 17.01.2013 agreeing to repay the same within two months. The petitioner/accused issued post dated cheque bearing No.702448 dated 22.03.2013 draw on HDFC Bank, Saraswathipuram Branch, Mysuru. The complainant presented the said cheque for encashment. The said cheque came to be dishonoured for the reason “account closed”. The complainant got issued legal notice by RPAD. The said legal notice has been returned as “not claimed.” As the cheque amount was not paid, respondent/complainant initiated proceedings against petitioner/accused for the offence punishable under Section 138 of the N.I.Act.

4. The complainant in order to prove his case examined himself as PW.1 and got marked Exs.P1 to P5. The statement of the accused has been recorded under Section 313 of Cr.P.C. The accused examined himself as DW.1 and got marked Exs.D1 to D3. After hearing arguments, the learned Magistrate convicted petitioner/accused for the offence under Section 138 of the N.I.Act. The said judgment of conviction has been challenged by the accused before the Sessions Judge in Crl.A.No.17/2017. The said appeal came to be dismissed on merits affirming the judgment of conviction and order of sentence passed by the trial Court.

5. Learned counsel for the petitioner would contend that the cheque given to one Mahadevamma has been misused by her through this complainant. PW.1 has admitted the suggestion that he is acquainted with the said Mahadevamma. There is a suggestion to DW.1 that accused is in the habit of cheating Mahadevamma and others by borrowing and issuing cheques. He further submits that account has been closed long back and the same has not been considered by the trial Court and the Appellate Court. The petitioner/accused had no opportunity of giving reply to the legal notice as the said notice sent by RPAD was returned as “not claimed.” Without considering all these aspects, the trial Court convicted the petitioner for the offence under Section 138 of the N.I.Act and the appellate Court has affirmed the conviction passed by the trial Court.

6. Learned counsel for the respondent would contend that the signature on the cheque - Ex.P1 has been admitted by petitioner/accused. As the signature is admitted, presumption has to be drawn under Section 139 of the N.I.Act. The presumption has not been rebutted. The defence that the cheque is given to one Mahadevamma and she has misused the said cheque through this complainant has not been established. Considering the said aspect, learned Magistrate has rightly convicted the petitioner for the offence under Section 138 of the N.I.Act. The appellate Court re-appreciating the evidence on record has rightly affirmed the said judgment of conviction passed by the trial Court.

7. Having heard the