Presumption under Section 139 of the Negotiable Instruments Act is rebuttable; if rebutted, the burden of proof shifts to the complainant to establish borrowing.

ORDER :

(SHIVASHANKAR AMARANNAVAR, J.)

1. This revision petition is directed against the judgment dated 20.12.2017 passed in Crl.A. No. 674/2014 by LXVI Additional City Civil and Sessions Judge, Bengaluru, whereunder the judgment of conviction dated 01.04.2017 passed in C.C. No. 21647/2016 by XXII Additional Chief Metropolitan Magistrate, Bengaluru, convicting the petitioner for offence under Section 138 of Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’) has been affirmed.

2. Heard learned counsel for petitioner – accused. Learned counsel for respondent remained absent and has not addressed arguments.

3. Case of the respondent – complainant was that the petitioner – accused had availed loan of Rs.5,00,000/-. The petitioner – accused, in order to repay the amount borrowed, had issued post dated cheque in the month of April, 2016, bearing No. 006156 dated 17.06.2016 for repayment of the amount borrowed. The respondent - complainant presented the said cheque for encashment and it came to be dishonoured for the reason `account closed’. The respondent - complainant got issued legal notice dated 16.07.2016 to the petitioner - accused calling upon her to pay the cheque amount. Said notice has been served on the petitioner - accused. The petitioner - accused has sent reply dated 23.08.2016. As the cheque amount has not been paid within 15 days, the respondent - complainant initiated proceedings against the petitioner - accused for offence punishable under Section 138 of the N.I. Act. The respondent – complainant, in order to prove her case, has examined herself as P.W.1 and got marked Ex.P.1 and Ex.P.7. Statement of the petitioner - accused has been recorded under Section 313 of Cr.P.C. The respondent - complainant filed her statement in writing under Section 313 (5) of Cr.P.C. The petitioner - accused has examined one Sri. Sai Mohan as D.W.1 and got marked Ex.D.1 to Ex.D.17. The trial Court, after hearing arguments on both sides has passed judgment dated 01.04.2017 convicting the petitioner - accused for offence under Section 138 of N.I. Act sentencing her to pay fine of Rs.5,05,000/- and in default, to undergo simple imprisonment for a period of 1 year. Said judgment of conviction had been challenged by the petitioner - accused before the Sessions Court in Crl.A. No. 674/2017. Said appeal came to be dismissed on merits confirming the judgment of conviction passed by the trial Court.

4. Learned counsel for petitioner would contend that the petitioner had taken up the defence that there were financial transactions between the petitioner - accused, Sri. Sai Mohan (D.W.1) and parents of respondent – complainant, namely, Sri. Ramachandrappa and Smt. Premamma. 3 cheques had been given as security for the said financial transaction and one of the cheque has been misused by the parents of the respondent - complainant through the complainant. He submits that the defence has been taken in reply notice – Ex.P.7. D.W.1 – Sri. Sai Mohan has stated in detail regarding the financial transaction between him, the petitioner and Sri. Ramachandrappa and Smt. Premamma – parents of complainant. He submits that Ex.D.1 to Ex.D.17 are documents which establish that there was financial transaction between the petitioner - accused, Sri. Sai Mohan and parents of respondent - complainant. He submits that petitioner and Sri. Sai Mohan had filed joint complaint against the parents of respondent - complainant on 05.04.2016 to the Police wherein there is a narration of giving 5 blank cheques by Sri. Sai Mohan and 3 blank signed cheques by petitioner - accused as security to the pa