Conviction upheld under Section 138 NI Act; presumption of liability not rebutted.

ORDER

The petitioner has challenged the judgment of conviction dated 07.10.2017 passed by Additional Civil Judge and JMFC, Holenarasipura in C.C.No.579/2012, convicting him for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short) and the consequent sentence to pay fine of Rs.3,25,000/-. The petitioner has also challenged the judgment of appellate Court dated 11.09.2018 passed by 5th Additional District and Sessions Court, Hassan in Crl.A.No.202/2017.

2. The facts that can be gathered from the proceedings are that the respondent had advanced a loan of Rs.2,50,000/- for purpose of business of the petitioner and thereafter, the petitioner passed on a cheque for a sum of Rs.2,50,000/- towards repayment of the same. The said cheque presented for encashment was dishonored due to insufficient funds which prompted the respondent to initiate prosecution for the offence punishable under Section 138 of NI Act, 1881, by issuing a notice of demand. The notice of demand was not replied, by the petitioner following which, the respondent initiated prosecution of the petitioner. The sworn statement of the respondent was recorded in C.C.No.579/2012 was registered. The petitioner appeared pursuant to the process issued by the trial Court who pleaded not guilty and claimed to be tried. The statement of the petitioner was recorded under Section 313 of Cr.P.C who denied the evidence against him. The respondent was examined as PW-1 and marked exhibits as Ex.P1 to Ex.P7. The petitioner was examined himself as DW1 and three other witnesses as DW2 to DW4 and he marked exhibits as Ex.D1 to Ex.D11.

3. Based on the oral and documentary evidence, the trial Court held that the signature of the petitioner on the cheque at Ex.P1 was admitted and that the cheque in question was drawn from the account of the petitioner was also admitted. It held that the petitioner did not rebut the presumption under Section 139 of NI Act, 1881 by a probable defence and therefore convicted him for the offence punishable under Section 138 of NI Act, 1881. An appeal preferred by the petitioner was also rejected. Being aggrieved by the same the present revision petition is filed.

4. The learned counsel for the petitioner submitted that the respondent did not establish his financial ability to pay a sum of Rs.2,50,000/- and therefore, the trial Court committed an error in drawing a presumption under Section 138 of NI Act, 1881. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in the case of BASALINGAPPA Vs. MUDIBASAPPA reported in (2019) SCC 418. He contended that the respondent had a BPL card as per Ex.D11 and that as per Ex.D5, the respondent was authorized by his family members to raise a loan on the security of the property belonging to his family. He therefore contended that the respondent did not possess the financial wherewithal to pay a sum of Rs.2,50,000/-. That there was no necessity for the respondent to raise a loan, if he had the capacity to advance loan of Rs.2,50,000/- to the petitiner. Further, he contended that the petitioner did not have any need to raise a loan from the respondent and the cheque in question was in fact given as security for the loan raised by DW-2. He submitted that another cheque given for the same purpose was also dishonored and proceedings initiated by the respondent for the offence punishable under Section 138 of NI Act, 1881 was rejected. He therefore, contended that the petitioner had rebutted the presumption under Section 139 of NI Act, 1881 and the trial Court was not justified in convicting him for the said offence.

5. The learned counsel for the respondent is absent and therefore this Co