The burden lies on the accused to prove that the cheque was not issued for debt, and mere denial is insufficient for acquittal under Section 138 of the Negotiable Instruments Act.

ORDER :

S VISHWAJITH SHETTY, J.

Petitioner is before this Court in this criminal revision petition filed under Section 397 r/w Section 401 of Cr.P.C., with a prayer to set aside the judgment and order of conviction and sentence passed in CC.No.51457/2013 by the Court of LVII ACMM, Mayohall Unit, Bengaluru, dated 01.06.2018 and the judgment and order dated 01.01.2022 passed in Crl.A.No.25109/2018 by the Court of XIII Addl. City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-22).

2. Heard the learned counsel for the parties.

3. Respondent-Company had initiated proceedings against the petitioner herein for offence punishable under Section 138 of Negotiable Instruments Act in CC.No.51457/2013 before the Jurisdictional Court of Magistrate at Bengaluru. In the said proceedings, in response to the summons received, the petitioner had appeared before the trial Court and had claimed to be tried.

4. The complainant, in order to prove its case, had examined one Mr.Raghu H.V., as P.W.1 and had got marked seven documents as Ex.P.1 to Ex.P.7. In support of defence, petitioner had examined himself as D.W.1. However, no documents were got marked on behalf of the defence.

5. The trial Court, after hearing the arguments addressed on both sides, had convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act. The judgment and order of conviction and sentence passed by the trial Court was unsuccessfully challenged by the petitioner in Crl.A.No.25109/2018, which was dismissed by the Court of XIII Addl. City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-22) by judgment and order dated 01.01.2022. It is under these circumstances petitioner is before this Court.

6. Learned counsel for the petitioner having reiterated the grounds in the petition submits that the courts below have failed to appreciate that the complainant had not made out a prima facie case and no documents were produced to show that there was a transaction between the petitioner and the complainant- Company. He submits that cheque in question was handed over to the husband of the Managing Director of the Company who was the friend of the petitioner. The said cheque was misused and a false claim has been made against the petitioner. The defence taken by the petitioner has not been appreciated properly by the trial Court. Accordingly, he prays to allow the petition.

7. Per contra, learned counsel for the respondent has argued in support of the impugned judgment and order of conviction and sentence and submits that both the courts below have concurrently held against the petitioner. The petitioner has failed to rebut the presumption that arose against him. Accordingly, he prays to dismiss the petition.

8. It is the case of the complainant-Company that petitioner had purchased unsold garments, dress materials and fixtures from the complainant-Company under slump sale for a total sum of Rs.6,50,000/-, for which, two separate invoices were raised for a sum of Rs.2,25,750/- and Rs.4,24,250/-. Towards discharge of the aforesaid liability, petitioner had issued the cheque in question in favour of the complainant for a sum of Rs.6,50,000/- drawn on ICICI Bank Limited, J.P.Nagar Branch, Bengaluru. The said cheque on presentation for realization was dishonored by the drawee Bank and thereafter, the complainant had got issued a legal notice to the accused, which was duly served on him on 28.01.2013. Since, the petitioner-accused had failed to pay the amount covered under the cheque in question, in spite