This

revision

petition

is

filed

challenging

the

judgment of conviction and order of sentence dated

20.06.2015 passed in C.C.No.406/2012 by learned Civil

Judge & JMFC, Koppa which is confirmed by learned I Addl.

District

and

Sessions

Judge,

Chikkamagalur

in

Crl.A.No.92/2015, wherein by order dated 02.08.2017, the

order of conviction and sentence passed by learned JMFC

imposing a fine of Rs.10,000/- and Rs.1,20,000/- as

compensation was confirmed by the appellate Court.

2. The petitioner is the accused and respondent is

the complainant before the trial court. They will be referred

as 'complainant' and 'accused', as such, for convenience.

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3. The respondent complainant filed a complaint

before the trial court contending that the accused

borrowed from him a sum of Rs.87,000/- as hand loan on

03.03.2011 on the assurance that accused will repay the

amount. In this regard, accused issued a cheque bearing

No.217613 drawn on Karnataka Bank, Kudregundi branch

dated 25.01.212 for Rs.87,000/- in favour of the

complainant. Accordingly, the complainant presented the

said cheque to SBI, Koppa branch for encashment, but the

said cheque was returned with an endorsement 'funds

insufficient' in the account of the accused. Then the

complainant got issued legal notice dated 27.02.2012

calling upon the accused to pay the amount within 15

days. Said notice was served, inspite of which, neither the

amount was paid nor there was any reply. Hence, the

complainant lodged the complaint.

4. Before the trial court, the complainant examined

himself as PW-1 and got marked five documents as Ex-P1

to Ex-P5. The accused denied the evidence of the

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complainant in his examination under section 313(1)(b)

Cr.P.C. The accused got examined himself as DW-1 and

after hearing the arguments, learned Magistrate convicted

the accused for the offence under section 138 of N.I. Act

and imposed the sentence. Aggrieved by the same,

criminal appeal came to be filed by the accused.

Thereafterwards, the learned Sessions Judge by the

impugned judgment dismissed the appeal, which is under

challenge before this Court.

5. Heard learned counsel for the petitioner Sri.

Madhu M.T. for Sri. Girish B. Baladare and Sri. K. Prasanna

Shetty, learned counsel for the respondent.

6. Learned counsel for the petitioner argued that the

order passed by learned JMFC and Sessions Court are

erroneous and bad in law. It is further contended that the

accused has received Rs.5,000/- and cheque was issued.

The same was misused by the complainant. Even he is

ready to pay the said amount. It is further contended that

the complainant has no financial capacity to pay the

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amount. The complainant has failed to prove the burden

on him, therefore the question of raising presumption does

not arise. As the cheque was given for the purpose of

security, the offence under section 138 of N.I. Act is not

attracted. Hence, he prayed to quash the impugned

judgment and set aside the impugned order.

7. I have perused records of the case. The judgment

and order passed by learned JMFC and also learned

Sessions Judge.

8. From the above, the point that arise for my

consideration is:

"Whether the order passed by learned Sessions

Judge in affirming the judgment of conviction

and order of sentence passed by learned Civil

JMFC in C.C.No.406/2012 is correct, legal or

needs any interference by this Court?"

9. Learned Sessions Judge has in detail considered

the evidence of the complainant and referred to the

evidence of PW-1. It is evident that the complainant has

given his evidence as PW-1 and he has produced

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documentary evidence Exs-P1 to P5. In the cross-

examination, complainant has stated that he is an

agriculturist and having five acres of arecanut garden and

other land. The complainant is getting income of

Rs.8.00 lakhs - Rs.10.00 lakhs per year. There is nothing

in his cross examination to disbelieve his evidence.

Complainant has produced the cheque which is marked as

Ex-P1 which sho