The borrower remains liable under Section 138 of the Negotiable Instruments Act despite contesting the cheque's validity, given insufficient evidence presented to refute statutory presumptions.

CAV ORDER

Accused has preferred this revision petition against the judgment of conviction and order on sentence dated 19^th October 2017 passed in CC No.666 of 2013 by the Civil Judge and JMFC, Holenarasipura, (for short hereinafter referred to as “the Trial Court”) which is confirmed by Judgment dated 05^th October 2018 passed in Criminal Appeal No.205 of 2017 by the III Additional District & Sessions Judge at Hassan (for short hereinafter referred to as “the appellate Court”).

2. For the sake of convenience, the parties herein are referred to as per their rank and status before the trial Court.

3. Brief facts leading to this revision petition are that the complainant has filed a complaint under Section 138 of Negotiable Instruments Act, 1881 as to dishonour of cheque. It is stated in the complaint that the complainant and accused are friends and well-acquainted with each other. Accused approached the complainant on 01^st August 2012 for his financial exigencies, as he was running a school and was intending to construct additional structure and also for discharge of loan and hence in this regard, requested for an amount of ₹15,00,000/- from the complainant. Accordingly, the complainant has agreed to pay the sum on 13^th August 2012. On the said date, the accused borrowed the loan from the complainant and agreed to repay it in six months. To discharge the said loan, accused issued a post-dated Cheque bearing No.261899 dated 13^th February 2013 drawn on Canara Bank, Vivekanandanagar Branch, Mysore as per Exhibit P1 in favour of the complainant. When the complainant presented the Cheque through his Banker i.e. Shri Vasavamba Co-operative Bank, Holenarsipura, Branch on 13^th February, 2013, the cheque came to be dishonoured with bankers endorsement dated 14^th March 2013, stating “insufficient funds”. The complainant has requested the accused on 10^th March 2013 to repay the dishonoured Cheque amount to which the accused has replied arrogantly. Therefore, the complainant got issued legal notice on 22^nd March 2013 through Registered Post to both the addresses of the accused. Among the two addresses, the notice sent to one of the addresses was duly served and one returned with an endorsement "Not claimed”. The accused failed to comply with the notice by paying the Cheque amount, and has given a false reply. Hence, the complainant was constrained to lodge a complaint under Section 200 of Code of Criminal Procedure before the Civil Judge & JMFC, Holenarsipura, which came to be registered and renamed as PCR No.201 of 2013.

4. The learned Magistrate took cognizance and recorded the sworn-statement of the Complainant and issued process to the accused and registered the case in CC No.666 of 2013 against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 . Accused appeared through his Counsel and was enlarged on bail. The substance of plea was recorded and the accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, complainant has examined three witnesses as PWs1 to 3 and produced 41 documents as Exhibits P1 to P41. On closure of complainant’s side evidence, Statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. Accused has totally denied the evidence of complainant witnesses and has adduced evidence of two witnesses as DWs1 & 2 and marked two documents as Exhibits D1 and D2. Complainant has submitted written arguments. Having heard the arguments on both sides, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act and awarded compensation of Rs.20,00,000/- and in default of payment of compensation, the accused shall undergo simple imprisonment for a period of six months. Being aggrieved by this Judgment of conviction and order on sentence, the accused preferred appeal before the III Additional District & Sessions Judge, Hassan in Criminal Appeal No.205 of 2017. Same came to be dism