ORDER

In this petition filed under Section 397 r/w 401 Cr.P.C, petitioner who is arraigned as accused has challenged his conviction and sentence for the offence punishable under Section 138 of N.I Act, imposed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.

2. For the sake of convenience, the parties are referred to by their rank before the trial Court.

3. Complainant filed complaint under Section 200 Cr.P.C against the accused alleging offence punishable under Section 138 of N.I Act, contending that she knew the accused since many years. He is residing behind her house. He is working as a driver in BMTC. During September 2013, accused approached the complainant with a request for hand loan in a sum of Rs.10 lakhs for his urgent need. He agreed to pay interest at 1%. On receipt of the amount, he promised to repay the same in the month of Jan 2014. Accordingly during the month of January 2014, complainant requested him to return the money. In this regard he issued cheque dated 27.01.2014 for 10 lakhs with an assurance that it would be honoured on presentation. However, when complainant presented the cheque for realization, it was returned with an endorsement “Funds insufficient”. Complainant got issued a legal notice to the accused. Though it is duly served, accused has neither paid the amount due or sent any reply and without any alternative, the complainant is constrained to file the complaint.

4. After due service of summons, accused appeared before the trial Court and contested the matter.

5. In order to prove the allegations against the accused, complainant got herself examined as PW-1 and relied upon Ex.P1 to 8.

6. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence placed on record by the complainant.

7. He has also stepped into the witness box and examined himself as DW-1 and relied upon Ex.D1 to 3.

8. The trial Court accepted the case of the complainant and convicted the accused. He is sentenced to pay fine of Rs.10,10,000/-(wrongly typed as Rs.10,00,000/-). Out of the fine amount, a sum of Rs.10,05,000/- is ordered to be paid to the complainant by way of compensation. In default of payment of fine, the trial Court has sentenced the accused to undergo simple imprisonment for six months.

9. Aggrieved by the same, accused filed appeal before the Session Court. However, it was dismissed, thereby confirming the judgment and order of the trial Court.

10. Being aggrieved by the same, the accused is before this Court, contending that the trial Court has erred in the convicting the accused. The Courts below have committed grave error in holding that complainant has proved the allegations against accused beyond reasonable doubt. The complainant has failed to produce any iota of evidence to prove advancing of huge sum of Rs.10 lakhs to the accused. The Courts below have failed to appreciate the evidence led by the accused in proper perspective. The order of the trial Court and Sessions Court is non-speaking order and there is no judicial application of mind and it calls for interference by this Court and prays to allow the petition, set aside the impugned judgment and order of trial Court as well as the Sessions Court.

11. Heard arguments of both sides and perused the record.

12. The accused admit that the cheque in question is drawn on his account maintained with his banker and it bears his signature. Therefore, the presumption under Sections 118 and 139 of the N.I Act is operating in favour of the complainant that the cheque was issued towards the repayment of any legally recoverable debt or liability. Therefore, initial burden would be on the accused to rebut the presumption and establish that it was not issued towards repayment of any legally recoverable debt or liability and on the other hand to prove the circumstances in which the cheque has reached the hands of complainant.

13. It is pertinent to note that though th