The court upheld the conviction under Section 138 of the NI Act, emphasizing that the presumption of a cheque being issued for a legally enforceable debt was not successfully rebutted by the accused.

ORDER :

RAVI V. HOSMANI, J.

Challenging judgment dated 30.09.2023 passed by LIX Additional City Civil and Sessions Judge, Bengaluru (CCH-60), in Crl.A.no.76/2023 and judgment of conviction and order of sentence dated 19.12.2022 passed by XIX Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.no.13759/2018, this revision petition is filed.

2. Sri BR Viswanath, learned counsel for petitioner (accused no.1) submitted that revision petition was against concurrent erroneous judgments, convicting him for offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act', for short). It was submitted, impugned proceedings were based on a private complaint filed by respondent (complainant) under Section 200 of Code of Criminal Procedure, 1973, (‘CrPC’, for short) alleging that accused no.1 was introduced to complainant by a common friend Dr.Rafeeq Ahmad, and that accused no.1 and 2 had approached her for hand loan to improve their fruits business and on 16.03.2017, they had received Rs.1,00,000/- through cheque no.925445 drawn on Syndicate Bank, Rs.1,50,000/- on 17.03.2017 by cash and Rs.2,50,000/- each on 23.05.2017 by cheques no.258301 and 258303 drawn on Syndicate Bank, from complainant. Further, Rs.5,00,000/- received as lease amount from his tenant in May, 2017, by complainant’s husband was also lent in first week of June, 2017, when accused requested for further loan. It was stated that accused had agreed to repay entire amount with interest at 1% within 6 to 8 months and also paid interest for three months. On default in payment of interest and lapse of 8 months, when complainant demanded repayment, accused no.1 had issued cheque no.525647 dated 16.02.2018 for Rs.12,50,000/- drawn on Indian Bank, Basavanagudi Branch, Bengaluru, which when presented on 19.04.2018, returned unpaid with endorsement ‘funds insufficient’ on 21.04.2018 and thereafter even when demand notice got issued by complainant on 27.04.2018 by RPAD, same had returned with endorsement ‘not claimed’ and accused failed to repay amount within time thereby committed offence punishable under of NI Act.

3. It was submitted, on appearance, accused denied charges and sought trial. Thereafter, complainant examined herself and three others as PWs.1 to 4 and got marked Exhibits-P1 to P14. On appraisal of incriminating material, accused denied same as false and their statements under Section 313 of CrPC was recorded. Thereafter, accused deposed as DWs.1 and 2 and got marked Exhibits-D1 to D5. It was submitted, accused had taken up various defences including denying existence of relationship of creditor and debtor, that payment made were towards purchase of fruits for distribution, that PW.2 acquainted with accused had stolen cheque from shop of accused no.1, that complainant failed to establish her financial capacity to lend money as claimed, that PW.1 despite being educated claimed not to remember date of lending and elicited admission from complainant – PW.1 that liability to pay amount in question was on accused no.2, without proper appreciation trial Court convicted accused. It was submitted, in her deposition, PW.1 had stated that payment was made by her to BKS Fruits and admitted accused no.2 was its owner and not accused no.1. She also admitted to have made efforts for recovery from accused no.2. Thus, when accused no.1 was neither guarantor nor surety, arraignment of accused no.1 was contrary to provisions of Sections 120 and 128 of Indian Contract Act, 1872.

4. It was submitted, while passing impugned judgment, trial Court observed there was admission by accused no.2 that issuance of cheque was towards discharge of legally en