The court upheld the conviction under Section 138 of the N.I. Act, emphasizing the presumption of debt upon cheque issuance, which the accused failed to rebut.

ORAL ORDER

1. This revision petition is directed against the judgment dated 09.04.2015 passed in Crl.A. No. 1055/2014 by LIX Additional City Civil and Sessions Judge, Bengaluru whereunder the judgment of conviction dated 27.08.2014 passed in C.C. No. 8185/2012 by XXII ACMM, Bengaluru, convicting the petitioner for offence under Section 138 of the Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’) has been affirmed.

2. Heard learned counsel for petitioner.

3. Case of the respondent – complainant is that the petitioner – accused had borrowed Rs.2,00,000/- from the respondent – complainant on 15.02.2011 and in order to repay the said amount borrowed, the petitioner – accused issued cheque for Rs.2,00,000/- dated 15.04.2011. Said cheque came to be presented for encashment and it came to be dishonoured for want of funds in the account of petitioner – accused by memo dated 17.09.2011. The respondent – complainant has issued legal notice demanding payment of cheque amount on 14.10.2011 by RPAD. Inspite of service of said notice, the petitioner – accused has not paid the cheque amount and therefore, the respondent – complainant has initiated proceedings against the petitioner – accused for offence under Section 138 of the N.I. Act. The respondent – complainant examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.6. Statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner – accused examined himself as D.W.1 and no documents were marked on defence side. The trial Court after hearing arguments on both sides and appreciating the evidence on record has convicted the petitioner – accused for offence under Section 138 of N.I. Act and sentenced him to pay fine of Rs.2,00,000/-. The petitioner – accused challenged the said judgment of conviction before the Sessions Court in Crl.A. No. 1055/2014 and the said appeal came to be dismissed by judgment dated 09.04.2015 confirming the judgment of conviction passed by the trial Court.

4. Learned counsel for petitioner would contend that the notice has not been served on the petitioner – accused. He further contended that the defence of the petitioner – accused that cheque issued as security to the husband of the respondent – complainant at the time of borrowing money from the husband of the respondent – complainant has been misused and borrowing of money and filing of case by husband of this respondent – complainant has been admitted by her in her cross-examination. The alleged borrowing and capacity to lend the money has not been established. Without considering all these aspects, the trial Court erred in convicting the petitioner and the appellate Court erred in confirming the said judgment of conviction without re-appreciating the evidence on record.

5. Having heard the learned counsel for the petitioner, this Court has perused the impugned judgments and trial Court records.

6. As the signature on the cheque is admitted, a presumption has to be drawn under Section 139 of the N.I. Act that the cheque is issued for discharge of a debt. Said presumption is a rebuttable presumption. The stand of proof for rebutting the said presumption is preponderance of probability.

7. The petitioner – accused has taken up the defence that the cheque issued by the petitioner – accused to the husband of the respondent – complainant has been misused through his wife. His further defence is that husband of respondent – complainant has initiated proceedings for dishonour of the cheque in the year 2010 and therefore, there is no question of borrowing money from the wife in the year 2011.

8. P.W.1 in her cross-examination has admitted that her husband has filed C.C. No. 44986/2010 against the petitioner –