JUDGMENT

Appellant/complainant feeling aggrieved by judgment of Trial Court on the file of Addl.Civil Judge and JMFC, Kundapura in C.C.No.2166/2007, dated 12.04.2013 preferred this appeal.

2. Parties to the appeal 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 arguments of both sides and on perusal of Trial Court records, so also the impugned judgment, the following points arise for consideration:

1) Whether the impugned judgment under appeal passed by Trial Court for the offence punishable under Section 138 of N.I.Act is perverse, capricious and legally not sustainable?

2) Whether interference of this Court is required?

5. On careful perusal of oral and documentary evidence placed on record, it would go to show that accused approached complainant and borrowed hand loan of Rs.12,500/-. Accused in order to discharge legally enforceable debt issued cheque bearing No.975294 for Rs.12,500/- dated 19.04.2007 drawn on Canara Bank, Thekkatte Branch Ex.P.1. Complainant presented the said cheque for collection through his banker, Kota C.A. Bank Ltd., and the same was dishonoured vide bank endorsement Ex.P.2 as “Payment Stopped By The Drawer” dated 27.04.2007. The same was communicated to the complainant through his banker on 07.05.2007 Ex.P.3. Complainant issued demand notice dated 09.05.2007 Ex.P.6 through RPAD and the same is duly served to accused on 14.05.2007 Ex.P.4. Accused has replied to the said notice dated 22.05.2007 Ex.P.5 and denied the liability covered under cheque Ex.P.1.

6. The defence of accused in the reply dated

22.05.2007 Ex.P.6 to the demand notice issued by complainant is that, he has issued blank signed cheque as a security for the loan borrowed from complainant about ten years back. Accused has repaid entire loan amount to complainant. However, complainant did not return blank signed cheque and postponed to return the same on one or the other pretext. On receipt of demand notice, accused came to know that the said cheque has been misused by complainant to file this false case. Accused in order to probabilise his defence relied on the material produced by complainant and document confronted Ex.D.1. Accused has not chosen to lead his defence evidence.

7. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that:

"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".

8. The Hon'ble Apex Court in it’s latest judgment in Rajesh Jain v/s Ajay Singh reported in 2023 SCC OnLine SC 1275, wherein it has been observed and held that, once issuance of cheque with signature of accused is either admitted or proved then, statutory presumption will have to be drawn in favour of the complainant.

In view of the principles enunciated in both the aforementioned judgment, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into witness box to probabilise his defence.

9. Complainant in the entire complaint averments did not plead anything about the loan borrowed by accused on executing on demand promissory note. However, during course of his