Revision Petitioner/accused feeling aggrieved by the

judgment of First Appellate

Court on the file of

Prl.District

and

Sessions

Judge,

Udupi

in

Crl.A.No.103/2012, dated 25.08.2014, confirming the

judgment of Trial Court on the file of Prl.Civil Judge and

J.M.F.C., Udupi in C.C.No.972/2008, dated 31.10.2012

preferred this Revision Petition.

2. Parties to the Revision Petition are referred with

their ranks as assigned in the Trial Court for the sake of

convenience.

3.

Heard the arguments of both sides.

4.

After hearing both the sides and on perusal of

Trial Court Records with judgment of both the Courts

below the following points arise for consideration:

1)

Whether the impugned judgment under

revision petition which confirmed the

judgment of the Trial Court is perverse

capricious and legally not sustainable and

call for any interference by this Court?

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5.

On perusal of the oral and documentary

evidence placed on record, it would go to show that the

accused has borrowed an amount of Rs.2,70,000/- on

04.07.2007. On the same day accused in order to

discharge the lawful debt has issued post dated cheque

bearing No.346568 dated 09.07.2007 for Rs.2,70,000/-

drawn on Vijaya Bank, Brahmavara Branch Ex.P.1. The

said cheque was presented by the complainant through his

banker for collection and the same was dishonoured vide

bank endorsement Ex.P.2 as 'Exceeds arrangement'. The

complainant has issued demand notice dated 19.11.2007

through RPAD Ex.P.3. and also through Under Certificate

of posting Ex.P.4. The notice sent to the accused through

RPAD returned as "Unclaimed" on 30.11.2007. However,

the notice sent to accused through UCP has been served.

The accused has neither replied to the notice nor paid the

amount covered under the cheque. Therefore, complainant

has filed the complaint on 27.12.2007. If the above

referred dates with regard to issuance of cheque and

dishonour of the same and non-compliance of accused to

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the demand notice issued by complainant are appreciated

with the oral testimony of PW.1, then it is evident that the

cheque issued by the accused for lawful discharge of debt

was dishonoured as "Exceeds Arrangement". Accused has

not replied to the demand notice nor paid the amount

covered under the cheque. Complainant has complied

necessary legal requirements in terms of Section 138 (a)

to (c) of Negotiable Instruments Act, 1881 (hereinafter for

brevity referred to as "N.I.Act"). Therefore, the statutory

presumption in terms of Section 118 and 139 of N.I.Act

will have to be drawn.

6.

In this context of the matter, it is useful to refer

the judgment of Hon'blel Apex Court in APS Forex

Services Pvt. Ltd. Vs. Shakti International Fashion

Linkers and others reported in AIR 2020 SC 945,

wherein it has been observed and held that once the

issuance and signature on cheque is admitted, there is

always a presumption in favour of complainant that there

exist legally enforceable debt or liability. Plea by accused

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that cheque was given by view of security and same has

been misused by complainant is not tenable.

7.

It also profitable to refer another judgment of

Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and

another reported in 2022 SCC OnLine SC 1131,

wherein it has been observed and held that:-

" Once the initial burden is discharged by the

complainant that the cheque was issued by the

accused and signature of accused on the

cheque is not disputed, then in that case, the

onus will shift upon the accused to prove the

contrary that the cheque was not for discharge

of any debt or other liability. The presumption

under Section 139 of N.I. Act is statutory

presumption

and

thereafter,

once

it

is

presumed that the cheque is issued in whole or

in part of any debt or other liability which is in

favour of the complainant/holder of the cheque,

in that case it is for the accused to prove the

contrary."

In

view

of

the

principles

enunciated

in

the

aforementioned two judgments of Hon'ble Apex Court, i