The presumption of legally recoverable debt under Section 139 of the Negotiable Instruments Act is upheld unless sufficiently rebutted by the accused.

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

Heard Sri.Santosh D. Nargund and Sri.Naveen Kumar Patil, counsel for Sri.Gourishankar Mot.

2. Accused suffered an order of conviction for the offence under Section 138 of Negotiable Instrument Act (for short, ‘N.I. Act’) in CC No.718/2022 confirmed in Crl.A. No.5068/2024 is the revision petitioner.

3. Facts in the nutshell for disposal of the revision petitioner are as under:

3.1 In respect of the legally recoverable debt namely repayment of the investment made by the complainant, accused said to have issued two cheques which were marked as Ex.P2 and P3 in a sum of Rs.24,15,000/-. Those cheques on presentation came to be dishonoured. Signatures in both the cheques is not in dispute as is admitted by DW1 in the cross examination.

3.2 Legal notice issued intimating the dishonour of the cheques and calling for the payment covered under the cheques, have been marked as exhibit P6, hand loan agreement is marked as exhibit P8. There was no compliance to the callings of notice and postal cover returned to the complainant is also marked as exhibit P7.

3.3 Learned trial judge after considering the probative value of the oral and documentary evidence placed on record convicted the accused for the offence punishable under section 138 of the N.I. Act in a sum of Rs.23,75,625/- of which a sum of Rs.23,70,000/- was ordered to be paid as compensation to the complainant and balance amount of Rs.5,625/- towards the defraying expenses of the State.

4. Being aggrieved by the same, accused filed an appeal in Crl.A.No.5068/2024 before the District Court.

Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties in detail and by considered judgment dated 03.10.2024 dismissed the appeal.

5. Thereafter, the accused is before this Court in this revision petition.

6. There was an interim order passed by this Court directing to deposit 50% of the fine amount. Till today, the revision petitioner has not deposited the said amount. As such, at request of counsel for revision petitioner, the matter is heard on the merits.

7. Sri Santhosh Malagoudar, learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition contended that complainant failed to make out a case of legally recoverable debt under Ex.P-1 and P-2.

8. He would further contend that the probative value of Ex.D1 is not considered by both the Courts while passing the impugned order.

9. He would further contend that since there was no legally recoverable debt covered under Exs.P1 and P2 and profit has already been shared by the accused to the complainant, hardly there was any scope for recording an order of conviction for the offence punishable under Section 138 of N.I. Act and sought for allowing the revision petition.

10. Per contra, Sri Hiran Kumar Patel on behalf of Sri Gouri Shankar Mot, learned counsel for respondent supports the impugned orders.

11. He would further contend that the complainant enjoyed the presumption under Section 139 of the N.I. Act and Ex.P-8 being the hand loan agreement, the contentions urged on behalf of the revision petitioner cannot be countenanced in law.

12. He would also contend that rebuttal evidence in the form of oral testimony of DW-1 and the document marked at Ex.D-1 would not be sufficient enough to rebut the presumption available to the complainant under Section 139 of the N.I. Act and as such, revision petition is meritless and sought for dismissal of the revision petition.

13. Having heard the parties in detail, this Court perused the material on record meticulously.

14. On perusal of the material on record, it is seen that the signatures found in Exs.P-2 and P-3 is not in dispute. Admittedly, Exs.P-2 and P-3 belongs to the accused. Further, material documents namely copy of the legal notice and loan agreement would probablize the case of the complainant that cheques were issued for legally recoverable debt.

15. When once the che