The presumption under Section 139 of the Negotiable Instruments Act arises upon admission of signature, and the accused must rebut this presumption to avoid conviction under Section 138.

ORAL JUDGMENT

This appeal is filed by the complainant challenging the judgment of acquittal dated 18.10.2014 passed in C.C.No.146/2011 by the XIII A.C.M.M., Bengaluru, whereunder the respondent -accused has been acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act” for brevity).

2. The brief facts of the appellant -complainant’s case is that

The respondent –accused came in contact of the appellant –complainant in connection with shooting and production of kannada film “Varshadhare”. During the production of the said film, the respondent –accused requested to the appellant –complainant to invest Rs.12,50,000/- for release of the said film and investment made by the complainant will be returned on or before 22.02.2010. The accused has under taken to execute an agreement towards repayment of the said loan amount. The complainant has paid Rs.12,50,000/- to the respondent –accused. The respondent –accused in order to repay the said amount has issued cheque bearing No.464249 dated 28.02.2010 for Rs.12,50,000/- drawn in ING Vysya Bank Ltd., Bengaluru. The complainant presented the said cheque and it came to be dishonoured with endorsement as “funds insufficient”. The complainant got issued legal notice to the respondent –accused on 22.07.2010 through RPAD and UCP. Inspite of service of notice the respondent –accused neither replied nor repaid the cheque amount within stipulated time. Therefore, the appellant -complainant has filed private complaint against the respondent –accused for offence punishable under Section 138 of Negotiable Instruments Act, 1881 .

3. Learned Magistrate took cognizance and registered case against the respondent –accused for offence punishable under Section 138 of N.I. Act in C.C.No.146/2011. The plea of the respondent –accused has been recorded. The complainant in order to prove his case has examined himself as P.W.1, got examined other two witnesses as P.W.2 and P.W.3 and got marked documents as Ex.P1 to P10. The statement of respondent -accused came to be recorded under Section 313 of Cr.P.C. The respondent –accused did not choose to lead defence evidence. Learned Magistrate after hearing on both sides has formulated points for consideration and passed impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal.

4. Heard learned counsel for the appellant and learned counsel for the respondent.

5. Learned counsel for the appellant would contend that the appellant –complainant has lent money of Rs.12,50,000/- to the respondent –accused for release of the film and for that accused has executed memorandum of understanding (hereinafter referred to as “MOU” for brevity) as per Ex.P5 on 22.02.2010 and issued cheque as per Ex.P1 dated 22.02.2010 for Rs.12,50,000/-. The respondent –accused did not repay the said amount barrowed and therefore, the appellant –complainant presented the cheque and it came to be dishonoured. He further submits the signature of the respondent –accused on Ex.P1 –cheque has been admitted by him therefore, the presumption under Section 139 of the N.I Act has to be drawn. He further submits that the respondent –accused has also admitted his signature on Ex.P5 –MOU and contended that Ex.P1 and Ex.P5 blank signed cheque and bond has been taken from his office. As the signature on cheque has been admitted by the respondent –accused, the presumption has to be drawn under Section 139 of the N.I Act. The execution of MOU as per Ex.P5 has been proved by evidence of witness who has been examined as P.W.2. The respondent –accused has not sent any reply to the legal notice and has not lead defence evidence to rebut the said presumption. Without considering all these aspects, learned Magistrate erred in passing impugned judgment of acquittal. With this, he prays to allow the appeal and convict the respondent –accused for offence punishable under Section 138 of N.I Act