To convict under Section 138 of the NI Act, it is essential to establish the signature and due execution of the cheque, with the burden resting on the accused to disprove after admission.

ORDER :

1. Challenging judgment dated 23.09.2023 passed by Principal District and Sessions Judge, Chikkamagaluru, in Crl.A.no.101/2023 confirming judgment dated 29.04.2023 passed by Civil Judge & JMFC, NR Pura, in CC no.276/2020, this revision petition is filed.

2. Sri Pavankumar Y Dhongde, learned counsel for petitioner submitted this revision petition was against concurrent erroneous findings convicting accused for offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for short).

3. It was submitted, proceedings were initiated on a private complaint filed by complainant under Section 200 of Code of Criminal Procedure, 1973 ('CrPC' for short) stating that accused was his relative and in first week of January, 2020, borrowed Rs.4,30,000/- as hand-loan agreeing to repay within three months, and on demand accused issued cheque bearing no.281951 dated 07.10.2020 for Rs.4,30,000/- drawn on Canara Bank, Anandapura, which when presented was dishonored with endorsement ‘funds insufficient and drawer signature incomplete’. And thereafter, even when demand notice got issued by complainant on 09.10.2020 was served, accused failed to repay amount within time and thereby committed offence punishable under Section 138 of NI Act.

4. It was submitted, on appearance, accused denied charges and sought trial, in which, complainant examined himself as PW.1 and got marked Exhibits.P1 to P7. After being explained incriminating material, accused denied it as false and same was recorded as her statement under Section 313 of CrPC. Thereafter, accused examining herself and two others as DWs.1 to 3 and got marked Exhibit D1. It was submitted, accused had set-up various defences and substantiated them in cross-examination, but, both Courts without proper appreciation convicted accused and therefore, said findings were perverse calling for interference.

5. It was firstly submitted, accused was an illiterate, who knew to sign in her name. Her signature in pleadings, vakalath etc. were in Kannada language. Though complainant claimed, accused signed on Ex.P1 - cheque in English in his presence and differed from signature in bank records. In cross-examination, PW.1 denies knowledge of accused unable to sign in any other language than Kannada. It was submitted, when accused denied and disputed execution of Ex.P1 - cheque, without establishing execution, offence under Section 138 of NI Act could not be established, moreso, when complainant failed to get opinion from handwriting expert.

6. It was submitted, definition of Bill of Exchange under Section 5 of NI Act, required signature of drawer on instrument for it to become a Bill of Exchange, which was absent in present case. It was further submitted, to substantiate defence denying signature of accused on Ex.P1 - cheque, accused had examined Manager of her Bank as DW.2, who stated that Ex.P.3 - endorsement indicated two reasons for dishonour of cheque in question, firstly insufficient funds and secondly about difference in signature of drawer. And corroborated same by production of Account Opening Form Register as Ex.D.1 and stating about difference in signature of accused on Ex.P1 in comparison with Ex.D1. Therefore, conviction based merely on presumptions under Sections 118 and 139 of NI Act would be contrary to record and perverse.

7. Relying upon decision in case of Ravichandra V. v. Rosi Line Reena Rani , 2021:KHC:41611, it was submitted, this Court had confirmed acquittal of accused of offence under Section 138 of NI A