ORDER

In this petition filed in 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, which came to be confirmed by the Sessions Court, by dismissing the appeal filed by him.

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

3. Complainant filed the complaint against accused alleging offence under Section 138 of N.I. Act, contending that complainant and accused are known to each other. Complainant is working as teacher in a private school. He is also owning agricultural land at Hebbal village. On 19.10.2014, at the request of accused, complainant advanced hand loan of Rs.1,95,000/- by cash. Accused assured to repay the same within six months. When he failed to keep up his promise, on the request and demand by the complainant, accused issued cheque dated 26.05.2015 for Rs.1,95,000/-. However, when it was presented for realization on the same day, it was returned dishonoured on the ground of “Funds insufficient”. Complainant got issued a legal notice dated 05.06.2015. Though it is duly served, accused has neither paid the amount due nor sent any reply and hence the complaint.

4. After due service of summons, accused has appeared through the counsel and contested the matter.

5. In order to prove the allegation against the accused, the complainant has examined himself as PW-1 and relied upon Ex.P1 to 9.

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

7. In fact, he has also stepped into the witness box and examined himself as DW-1. He has examined one Taragara Tirumalesha as DW-2. No documents are marked on behalf of the accused.

8. The trial Court accepted the case of the complainant and convicted the accused. He was sentenced to pay fine of Rs.2,20,000/- with default sentence.

9. Accused challenged the same before the Sessions Court in Crl.A.No.69/2018. However, it came to be dismissed, confirming the judgment and order of the trial Court.

10. Being aggrieved by the same, accused is before this Court, contending that the impugned judgment and order of the trial Court as well as the Session Court are illegal, erroneous, contrary to the facts and material on record. They are based on presumptions and assumptions. They are suffering from infirmities and without according any valid and sound reasoning. The notice is not served on the accused. The notice which was sent through the envelope at Ex.P5 is dated

22.06.2015 and therefore Ex.P4 is not the notice sent to the accused. In the absence of due service of notice, the complaint is not maintainable. The findings of the trial Court and Sessions Court on this aspect is without any basis and prays to allow the petition and acquit the accused.

11. In support of his arguments, the learned counsel for accused has relied upon the following decision:

(i) M/s Shakti Travels and Tours Vs. State of Bihar and Ors. (Shakti Travels)1 (ii) Mani Vs. State of Kerala Rep by Excise Inspector (Mani)2

12. On the other hand, learned counsel representing the complainant has supported the impugned judgment and order of the trial Court as well as the Session Court and sought for dismissal of the petition.

1

2000 (3) BLJR 2420 Crl.A.No.486/2007

13. In support of his arguments, the learned counsel for complainant has relied upon the following decisions:

(i) M.D.Ramakrishnaiah Vs. V.Javaregowda (M.D.Ramakrishnaiah)3 (ii) Smt.Shakuntala Devappa Vs. B.R.Ravishankar (Shakuntala Devappa)4 (iii) Rangappa Vs. Sri Mohan (Rangappa)5

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

15. The accused admitted that the cheque in question is drawn on his account maintained with his banker and it bears his signature. Consequently, 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 repayment of any legall