The presumption of issuance for repayment under Section 139 of the N.I. Act can be rebutted by the accused with sufficient evidence.

ORAL JUDGMENT

1. This appeal is filed by the appellant –

complainant challenging the judgment of acquittal dated 26.02.2018 passed in C.C. No. 264/2016 by the Senior Civil Judge and J.M.F.C., Thirthahalli, whereunder, the respondent – accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘N.I.Act’).

2. Case of the appellant – complainant is that the respondent – accused and the appellant – complainant were friends and they were known to each other. The respondent – accused had borrowed hand loan of Rs.2,00,000/- from the complainant on 13.07.2010 and for making repayment of the said loan amount, he had issued a cheque bearing No.1129464 dated 13.09.2010 for Rs.2,00,000/- drawn on Vijaya Bank, Thirthahalli to the appellant – complainant. The appellant – complainant presented the said cheque for encashment and it came to be dishonoured with shara “funds insufficient” on 15.09.2010. The appellant – complainant got issued legal notice and it came to be served on the respondent – accused. The respondent – accused did not pay the cheque amount and therefore, the appellant – complainant filed a private complaint against him for offence under Section 138 of the N.I. Act. The learned Magistrate took cognizance of the offence and registered C.C. No. 264/2016 against the respondent – accused for offence under Section 138 of the N.I. Act. The plea of the respondent – accused came to be recorded. The appellant – complainant, in order to prove his case, has examined himself as PW1 and got marked Exs.P1 to P7. The statement of the respondent – accused came to recorded under Section 313 of Cr.P.C . The respondent – accused has examined himself as DW1 and also examined one witness as DW2. One document came to be marked in the cross examination of PW1 as Ex.D1. The Trial Court after hearing the arguments on both sides has passed the impugned judgment of acquittal. The said judgment of acquittal has been challenged in this appeal.

3. Heard learned counsel for the appellant and learned counsel for respondent – accused.

4. Learned counsel for appellant would contend that the respondent - accused has admitted his signature on Ex.P.1 – cheque and therefore, a presumption arises under Section 139 of N.I. Act that a cheque has been issued for making payment of legally enforceable debt. He further contends that the respondent - accused has not rebutted the said presumption. Learned counsel further submits that the respondent - accused has not taken any action for taking back his 6 signed cheques and he has not produced any document to show that he had given 6 signed cheques to the complainant as security. Cheque – Ex.P.1 may be of the year 19--, but, respondent - accused has issued the same on 13.09.2010 for making payment of the amount borrowed and the same is dishonoured on the ground of insufficient funds. Without considering this aspect learned Magistrate has erred in passing the impugned judgment of acquittal and therefore, he prays for allowing the appeal and convicting the respondent -

accused for offence under Section 138 of the N.I. Act. 5. Learned counsel for respondent would contend that the respondent - accused has admitted that he had borrowed Rs.1,10,000/- from the appellant – complainant during the year 1998 and he had handed over 6 signed blank cheques to the complainant as security and subsequently, he executed a sale agreement on 25.07.1998 as security for the amount borrowed. He submits that the amount borrowed has been repaid and the complainant has not returned the signed cheques. The year printed in the cheque – Ex.P.1 “19—“ itself indicates that the cheque has been issued prior the year 2000. Said aspect fortifies the defence of the respondent - accused. Evidence of the D.W.2 - Bank Manager also supports the contention of the respondent - accused that cheque book had been issued to the respondent - accused in the year 1998 and Ex.P.