Under Section 139 of the Negotiable Instruments Act, once the execution and signature on a cheque are admitted, a legal presumption of a debt exists; an accused claiming misuse of blank cheques must offer cogent evidence or take legal action to rebut this presumption to avoid conviction under Section 138.

THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO 1.SET ASIDE THE JUDGMENT OF CONVICTION DATED 03.08.2019 PASSED BY THE XIV A.C.M.M., MAYO HALL, BENGALURU IN C.C.NO.58542/20182. SET ASIDE THE JUDGMENT DATED 10.02.2021, PASSED BY THE LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU IN CRL.A.NO.25208/2019 AND ACQUIT THE ACCUSED AND REMAND THE CASE BY ALLOWING THE PETITION.

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

ORAL ORDER

Heard Sri. H.Malatesh, learned counsel for the revision petitioner and Sri. Vinod Reddy.V, learned counsel for the respondent.

2. Accused has suffered an order of conviction in CC No.58542/2018 dated 03.08.2019 passed by the Court of XIV Addl. Chief Metropolitan Magistrate, Bengaluru for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, confirmed in Crl.Appeal No.25208/2019 vide judgment dated 10.02.2021 by the Court of LXXIV Addl. City Civil and Sessions Judge, Bengaluru.

3. Facts in the nutshell which are utmost necessary for disposal of the present petition are as under:

3.1. A private complaint under Section 200 of Cr.PC was lodged against the revision petitioner by the complainant alleging that, he has committed an offence punishable under Section 138 of the Negotiable Instruments Act.

3.2. According to complaint averments, accused borrowed loan of ₹30,00,000/- from the complainant in the month of May 2016 for purchase of Mayura Channel agreeing to repay the amount with interest at the rate of 2% per month and thereafter, accused repaid sum of ₹10,50,000/- towards the principal amount and interest, but failed to repay the entire loan amount. It is further contented that, on 06.06.2016, accused and his wife executed a sale agreement in respect of the site belonging to them for sale consideration of ₹30,00,000/- and received ₹10,00,000/- as advance amount from the complainant.

3.3. On demand for settlement of the claim, the accused negotiated with the complainant to reduce the total amount payable by him, and after due negotiation, by way of mutual agreement, it was agreed that sum of ₹33,00,000/- is to be paid by the accused as full and final settlement in respect of all the dues of accused with the complainant and mutual agreement was also executed in this regard on 04.04.2018. Accused, pursuant to the said mutual agreement, issued four cheques as under:

a) Cheque No.614770 dated 15.04.2018 for ₹5,00,000/-

b) Cheque No.614771 dated 30.05.2018 for ₹9,00,000/-

c) Cheque No.614772 dated 30.06.2018 for ₹9,00,000/-

d) Cheque No.614773 dated 30.07.2018 for ₹10,00,000/-

Those cheques, on presentation, came to be dishonoured with endorsements ‘payment stopped by the drawer’ and ‘funds insufficient’.

3.4. Legal notice was caused on 09.08.2018 calling upon the accused to pay the amount covered under the cheques. The legal notice was not claimed by the accused, but he got issued a reply notice on 23.08.2018, but failed to comply the callings of notice resulting in filing the complainant to take action against the accused per the offence punishable under Section 138 of Negotiable Instruments Act.

4. Learned Trial Magistrate, on receipt of the complaint, completed the necessary formalities and thereafter, summoned the accused and recorded the plea. Accused pleaded not guilty. Therefore, trial was held.

5. In order