Revision petitioner/accused feeling aggrieved by the

judgment of First Appellate Court on the file of LX

Additional City Civil and Sessions Judge, Bengaluru

(CCH-61)

in

Crl.A.No.1695/2018

dated

24.11.2018

confirming the judgment of trial Court on the file of the XII

Additional Chief Metropolitan Magistrate, Bengaluru in

C.C.No.7909/2012

dated

04.11.2017

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.

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4. After hearing the arguments of both sides and on

perusal of the Trial Court records, so also the judgments of

both the Courts below, the following points arise for

consideration:-

1. Whether the impugned judgment of the First

Appellate Court in confirming the judgment of

the Trial Court for the offence punishable under

Section 138 of NI Act is perverse, capricious

and legally not sustainable?

2. Whether interference by this Court is 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.

Accused

has

agreed

to

sell

her

house

for

total

consideration of Rs.16,60,000/-. Out of the total

consideration amount, complainant has paid earnest

money of Rs.8,00,000/-. The said transaction was not

materialized and accused in order to discharge his lawful

debt issued cheque bearing No.609249 dated 15.09.2011

for Rs.5,00,000/- at Ex.P.1 and another cheque bearing

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No.609250 dated 30.09.2011 for Rs.3,00,000/- at Ex.P.2.

Both the cheques were drawn on Oriental Bank of

Commerce, Yelahanka branch, Bengaluru. Complainant

presented both the cheques for collection through his

banker i.e., Dena Bank, Cholanagar branch, Bengaluru and

the same were dishonoured on 02.11.2011 with bank

endorsements at Exs.P.3 and P.4 as ‘Payment Stopped by

the drawer’. Complainant issued demand notice - Ex.P.5

on 09.11.2011 through RPAD and courier. The demand

notice sent to accused through RPAD is duly served vide

acknowledgement card Ex.P.13. The demand notice sent

through courier vide receipts at Exs.P.8 and P.9 also came

to be served vide Ex.P.12 – courier acknowledgment.

Accused inspite of due service of notice neither replied to

the notice nor paid the amount covered under cheques –

Exs.P.1

and

P.2.

Therefore,

complainant

has

filed

complaint. If the above referred documents are perused

and appreciated with the oral evidence of PW-1 would go

to show that the cheques (Exs.P.1 and P.2) issued by

accused with her signatures were bounced vide bank

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endorsements as “Payment stopped by drawer”. Accused

in spite of due service of demand notice has not paid the

amount covered under the cheques. Complainant by said

evidence on record has complied the legal requirement in

terms of Section 138 (a) to (c) of the Negotiable

Instrument Act, 1881 (hereinafter referred to as ‘NI Act’

for short) and the complaint is filed within a period of one

month in terms of Section 142 of NI Act. Therefore,

statutory presumption in terms of Section 139 of NI Act

will have to be drawn in favour of the complainant.

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

the decision of Hon’ble Apex Court in the case of 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

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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