The presumption under Section 139 of the N.I. Act shifts to the complainant once the accused's defence is established, requiring proof of the debt.

ORAL ORDER

This revision petition is directed against the judgment dated 04.09.2017 passed in Crl.A.No.208/2016 by the LX Additional City Civil and Sessions Judge, Bengaluru where under the judgment of conviction and order of sentence dated 27.01.2016 passed in C.C.No.21799/2014 by the XII ACMM, Bengaluru convicting the petitioner-accused for the offence under Section 138 of the N.I.Act has been affirmed.

2. Heard learned counsel for the petitioner. Learned counsel for the respondent absent. Learned counsel for the respondent was also absent on previous date.

3. The case of respondent – complainant is that complainant and accused are well acquainted with each other since both of them are serving in Air Force. The accused approached the complainant during the first week of January, 2014 for advancement of loan amount of Rs.8,00,000/- and complainant has advanced loan of Rs.8,00,000/- to the accused. The accused agreed to repay the amount borrowed and issued post dated cheque bearing No.379018 dated 23.06.2014 drawn on State Bank of India, Jalahalli Branch, Bengaluru. The complainant presented the said cheque for encashment through his banker and the said cheque came to be dishonoured with shara as “insufficient funds” under bank memo dated 23.06.2014. The complainant informed the said fact to the accused. The accused requested the complainant to present the said cheque again. The complainant again presented the said cheque on 06.07.2014 and 07.07.2014, but the said cheque again was dishonoured with shara as “funds insufficient”. Thereafter the complainant had informed the said fact to the accused. But the accused did not responded to the same. The complainant got issued legal notice dated 15.07.2014 and the said notice has been served on

16.07.2014. The accused has issued evasive and untenable reply to the said legal notice and has not repaid the amount borrowed to the complainant. Therefore, the complainant has initiated the proceedings against the petitioner – accused for the offence under Section 138 of the N.I.Act.

4. The complainant examined himself as PW.1 and got marked Exs.P1 to P12. The statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner-accused examined himself as DW.1 and got marked Exs.D1 to D4. The trial Court after hearing arguments on both sides has convicted the petitioner for the offence under Section 138 of the N.I.Act and sentenced him to pay fine of Rs. 8,05,000/- and in default to undergo simple imprisonment for six months.

5. The said judgment of conviction has been challenged by the accused before the Sessions Court in Crl.A.No.208/2016 and the appeal came to be dismissed on merits affirming the judgment of conviction passed by the trial Court.

6. Learned counsel for the petitioner would contend that even though the signature on the cheque is admitted, the petitioner-accused has taken up the defence in his reply notice Ex.P12 that the cheque Ex.P1 has been given as a security for earlier loan transaction in the year 2011 when he borrowed Rs.50,000/- from the complainant. He submits that complainant – PW.1 has admitted in his cross-examination that the previous loan which he had given to the accused was in the year 2011 and the accused has repaid the same. He further submits that cheques which are having subsequent serial numbers to that of Ex.P1 have been encashed during the year 2011 and the same can be considered on perusal of Ex.D3, Bank pass book of the accused and Ex.D4, counterfoils of the cheques contained in the cheque book. He submits that there is an entry in the said Ex.D4, cheque book that cheque bearing No.379018 has been issued on 17.01.2011 to C.Ravi (respondent-complainant herein). The amount of cheque is n