Revision petitioner/accused feeling aggrieved by the

Judgment of First Appellate Court on the file of III

Additional District and Sessions Judge in Criminal Appeal

No.271/2018 dated 19.09.2019 confirming the Judgement

of Trial Court on the file of Senior Civil Judge and JMFC,

Arasikere in C.C.No.209/2017 dated 05.10.2018, preferred

this revision petition.

2. Parties to the revision petition are referred with

their ranks as assigned in the Trial court for the sake of

convenience.

3. Heard the arguments of both sides.

4. After hearing the arguments of both sides and on

perusal of Trial Court records with the judgment of both

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the

Courts

below,

the

following

points

arise

for

consideration:-

I. Whether the impugned Judgment of First

Appellate

Court

which

confirmed the

Judgement of Trial Court is perverse

capricious and legally not sustainable ?

II. Whether

interference

of

this

Court

required?

5. On careful perusal of oral and documentary

evidence placed on record, it would go to show that

complainant and accused are known to each other from

many years. On 01.10.2016, accused approached the

complainant and borrowed a sum of Rs.4,50,000/- which

he has agreed to return the same within four months.

Further, when the complainant approached the accused

on 03.03.2017 for return of the amount, accused in

discharge of lawful debt has issued the cheque bearing

No.769678 dated 04.03.2017 EX-P1. The complainant

presented the said cheque for encashment through his

banker Canara Bank, Bengaluru. The banker of the

complainant vide letter Ex.P2 and endorsement Ex.P3

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returned the cheque as dishonoured for want of "sufficient

funds" in the account of accused. Complainant issued

demand notice dated 17.03.2017 through RPAD Ex-P4,

same is duly served to the accused on 20.03.2017 vide

acknowledgement card Ex-P5. Accused in spite of due

service of demand notice, has neither paid the amount

covered under the cheque EX-P1 as called upon in the

notice, nor paid the amount. Therefore, complaint came

to be filed on 19.04.2017. The above referred dates

regarding the issuance of cheque, presentation of the

same and dishonour of the said cheque for want of

sufficient fund in the account of the accused and demand

notice issued by the complainant, the same is duly served

to the accused are appreciated with the oral evidence of

PW-1, then it would go to show that the cheque issued by

the accused Ex.P.1 for lawful discharge of debt came to be

dishonoured for want of sufficient fund in the account

maintained by him. Complainant has complied Section

138 (a) to (c) of the N.I. Act and the complaint is filed

within time. Therefore, statutory presumption in terms of

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Section 118 and 139 of the N.I. Act, 1881 will have to

withdrawn in favour of the complainant.

6.

In this context of the matter, it is useful to refer

the judgment of Hon'blel Apex Court in APS Forex

Services Pvt. Ltd. Vs. Shakti International Fashion

Linkers and others reported in AIR 2020 SC 945,

wherein it has been observed and held that once the

issuance and signature on cheque is admitted, there is

always a presumption in favour of complainant that there

exist legally enforceable debt or liability. Plea by accused

that cheque was given by view of security and same has

been misused by complainant is not tenable.

7.

It also profitable to refer another judgment of

Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and

another reported in 2022 SCC OnLine SC 1131,

wherein it has been observed and held that:-

" Once the initial burden is discharged by the

complainant that the cheque was issued by the

accused and signature of accused on the

cheque is not disputed, then in that case, the

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onus will shift upon the accused to prove the

contrary that the cheque was not for discharge

of any debt or other liability. The presumption

under Section 139 of N.I. Act is statutory

presumption

and

thereafter,

once

it

is

presumed that the cheque is issued in whole or

in part