The presumption of guilt under Section 139 of the Negotiable Instruments Act requires the accused to present credible evidence to rebut it; a failure to do so leads to affirmation of conviction.

ORDER :

1. This Criminal revision petition under Section 397 read with Section 401 of Cr.PC is filed assailing the judgment and order of conviction and sentence passed by the Court of 8^th JMFC at Mangalore in C.C.No.463/2017 dated 20.01.2020, confirmed in Criminal Appeal No.27/2020 dated 03.02.2021 by the Court of Principal District and Sessions Judge, D.K. Mangaluru.

2. Heard the learned counsel for the parties.

3. Respondent herein had initiated proceedings against the petitioner for offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (in short 'N.I. Act') in C.C.No.463/2017. It is the case of the respondent/complainant that petitioner had borrowed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) and towards repayment of the said amount, he had issued cheque bearing No.967462 dated 15.09.2016 drawn on Canara Bank, Valencia Branch, Mangaluru, Dakshina Kannada District, in favour of the complainant and on presentation of the said cheque for realisation, the same was dishonored by the drawee bank with an endorsement "Funds Insufficient". Thereafter, the complainant had complied the statutory requirements as provided under the N.I. Act by issuing a legal notice to the petitioner and since the petitioner had failed to pay the amount covered under the cheque-in-question, proceedings were initiated against him for offence punishable under Section 138 of N.I. Act in C.C.No.463/2017. The petitioner had appeared before the Trial Court and claimed to be tried. The complainant/respondent in support of his case had examined himself as PW.1 and got marked eight documents as Ex.P1 to Ex.P8. On behalf of the respondent/accused, he had examined himself as DW.1, but no documents were marked in support of his defence. The Trial Court after hearing the arguments addressed on both sides vide judgment and order dated 20.01.2020 passed in C.C.No.463/2017 had convicted the petitioner for offence punishable under Section 138 of N.I. Act and sentenced petitioner to pay fine of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) and in default to undergo simple imprisonment for a period of six months. The said Judgment and order of conviction and sentence passed by the Trial Court has been upheld by the Appellate Court in Criminal Appeal No.27/2020 which was dismissed on 03.02.2021. It is under these circumstances, petitioner is before this Court.

4. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that the legal notice issued to the petitioner on behalf of the respondent/complainant was not served. The Courts below have failed to appreciate this aspect of the matter. He submits that the petitioner had not borrowed any amount from the complainant and on the other hand the cheque-in-question was issued as a guarantee for the amount borrowed from the complainant by one Sri.Ismail.

5. Per contra, learned counsel for the respondent has argued in support of the order's impugned.

6. Perusal of the material on record would go to show that complainant in support of his case has examined himself as PW.1 and has got marked 8 documents in support of this case. It is the case of the complainant that petitioner had borrowed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) from him and towards repayment of the said amount the cheque-in-question was issued. The signature found in the cheque-in-question is not in dispute and it is also not in dispute that the cheque was drawn on the bank account which was maintained by the petitioner/accused at Canara Bank, Valencia Branch, Mangalore, Dakshina Kannada District. The said cheque was dishonoured by the drawee bank with an endorsement "Funds In