The presumption under Section 139 of the NI Act arises upon issuance of a cheque, and the accused must rebut this presumption to avoid conviction.

CAV JUDGMENT

The complainant in CC No.948 of 2007 on the file of the learned Principal-I Civil Judge and JMFC at Mysuru (hereinafter referred to as 'the Trial Court' for short), is impugning the judgment dated 28.03.2012 passed in Criminal Appeal No. 86 of 2011 on the file of the learned I Additional Sessions Judge, Mysuru, acquitting the respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act'), by allowing the appeal and setting aside the impugned judgment of conviction and order of sentence dated 07.06.2011 passed by the Trial Court, convicting him for the offence punishable under Section 138 of NI Act and sentenced him to undergo simple imprisonment for 30 days and also to pay fine of Rs.1,30,000/- and in default to pay fine, to undergo simple imprisonment for one month. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

3. Brief facts of the case are that, the complainant filed the private complaint against the accused in PCR No.1100 of 2006 alleging commission of offence punishable under Section 138 of NI Act. It is contended by the complainant that both the accused and the complainant were known to each other since few years and the accused had approached the complainant during May, 2006 requesting for hand loan of Rs.1,00,000/- to meet his business and legal necessities. Accordingly, the complainant had lent an amount of Rs.1,00,000/-. The accused had issued the post dated cheque bearing No.003147 for Rs.1,00,000/- dated 12.08.2006 in favor of the complainant. When the cheque was presented for encashment, the same was dishonored as account closed. Legal notice was issued by the complainant and the same was served on the accused. The accused has neither paid the cheque amount nor replied to the legal notice and thereby, committed the offence punishable under Section 138 of NI Act. Accordingly, he requested the Trial Court to take cognizance of the offence and to initiate legal action.

4. The Trial Court took cognizance of the offence and registered CC No.948 of 2007. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined himself as PW1 and got marked Exs.P1 to P6 in support of his contention. The accused has denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., examined himself as DW1 and got marked Exs.D1 to D20 in support of his defence. The Trial Court after taking into consideration all these materials on record, convicted the accused for the offence punishable under Section 138 of NI Act and sentenced him as stated above. Being aggrieved by the same, the accused has preferred Criminal Appeal No. 86 of 2011. The First Appellate Court on re-appreciation of the materials on record, allowed the appeal by setting aside the impugned judgment of conviction and order of sentence passed by the Trial Court and acquitted the accused. Being aggrieved by the same, the complainant is before this Court.

5. Heard Sri Gopal Singh, learned counsel for the appellant and Sri H Giridhar, learned counsel for the respondent. Perused the materials including the Trial Court records.

6. Learned counsel for the complainant contended that the complainant has taken a specific contention that the accused had borrowed a sum of Rs.1,00,000/- during May 2006 and towards discharge of the same, post dated cheque for Rs.1,00,000/- dated 12.08.2006 was issued. When the cheque was presented for encashment, the same was dishonored as account closed. In spite of service of notice, the accused had not repaid the cheque amount and thereby committed the offence punishabl