The revision petitioner has questioned the

legality and correctness of the concurrent findings

recorded

by

the

Courts

below,

convicting

and

sentencing him for the offence punishable under

Section 138 of the Negotiable Instruments Act (for

short ‘the Act’).

2.

Brief

facts of

the

case

are that the

complainant is working as a teacher in Government

Marathi School and she is a family friend of the

accused. The accused approached her requesting for

financial help of Rs.40,000/- assuring that he will

return the amount within six months. The said sum

was advanced to the accused by raising loan on

fixed deposits from Adarsha Co-operative Credit

Society Ltd., Tilakwadi, Belagavi. In order to

discharge the said debt and liability, accused issued

a cheque bearing No.311938 dated 13.07.2006 for

3

Rs.40,000/-

drawn

on

Shri

Basaveshwar

Co-operative

Bank

Ltd.,

Vishwesharaiah

Nagar

Branch, Belagavi. The said cheque when presented

to the bank, came to be dishonoured for ‘insufficient

funds’ in the account of the accused, on 14.07.2006.

Legal

notice

dated

02.08.2006

issued

by

the

complainant

was

served

on

the

accused

on

03.08.2006, but the accused gave untenable reply

vide reply notice dated 21.08.2006 and failed to

honour the amount mentioned in the cheque within

the stipulated time and therefore, committed an

offence punishable under Section 138 of the Act.

3.

The

accused

has

denied

the

entire

transaction with the complainant. The defence is

that the transaction has taken place between the

accused

and

the

complainant’s

husband

and

therefore, there was no legally enforceable debt.

According to the defence taken, complainant is a

stranger to the accused and therefore, question of

4

borrowing loan from the complainant does not arise.

It is contended by the learned counsel for petitioner

that PW-1 has admitted in her cross-examination

that she met the accused for the first time in the

year 2007 and therefore, advancement of loan to

accused in the year 2003 creates a doubt. It is also

contended that according to the complainant, loan

was

given

by

cash.

However,

in

the

cross-

examination, she has stated that the loan was given

through withdrawal slip. She, therefore contends

that the complainant has taken inconsistent stand

and the benefit of doubt should therefore go to the

accused. She contends that both the Courts have

failed to take into consideration these aspects and

therefore, seeks to allow the petition.

4.

There is a presumption available in favour

of the holder in due course of the cheque under

Sections 118 and 139 of the Act and it is a rebuttal

presumption. The accused need not lead any

5

evidence to rebut the presumption, on the other

hand, he can rely on the material submitted by the

complainant

or

facts

elicited

in

his

cross-

examination.

5.

In the case on hand, the accused has not

led any evidence. However, he is relying on the

cross-examination of PW-1 and also the materials on

record, which are marked through the evidence of

PW-1. It is pertinent to see that issuance of cheque

has not been disputed by the accused. However, it

is his contention that the cheque was issued to

complainant’s

husband

and

there

was

no

loan

transaction

between

the

accused

and

the

complainant. The trial Court has observed that

transaction is not denied by the accused so also the

issuance of cheque by him. It has taken note of the

fact that there is recital in the statement of

complainant, that as per Ex.P.11, Rs.40,000/- was

given to the accused. Considering the material on

6

record, trial Court has come to the conclusion that

accused

has

failed

to

discharge

the

statutory

presumption and failed to rebut the evidence and

establish his defence.

6.

The appellate Court has also taken into

consideration

that

accused

has

not

taken

any

contention

that

the

cheque

did

not

bear

his

signature or that he did not give the cheque to the

complainant. In Ex.P.5, namely, the reply notice, it

is stated that the complainant forced to give a blank

ch