In a prosecution for dishonoured cheques under Section 138 of the Negotiable Instruments Act, the legal presumption under Section 139 cannot be rebutted by mere unsubstantiated claims of a lost cheque if the accused fails to provide any credible evidence during trial.

THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED JUDGMENT AND ORDER DATED 23.01.2026 IN CRIMINAL APPEAL NO.5040/2024 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT SRIRANGAPATNA) AND THE JUDGMENT AND ORDER DATED 17.01.2024 IN CC NO.685/2024 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA.

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

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL ORDER

This matter is listed for admission. Heard the learned counsel for the revision petitioner.

2. This revision petition is filed against the concurrent finding.

3. The factual matrix of the case of the complainant before the Trial Court is that the complainant and the accused are relatives and both are having acquaintance with each other and the accused on many occasions approached her for financial assistance to establish his business and agreed to repay it. After sometime, she demanded for repayment of amount and the accused calculated the amount and he was due for an amount of Rs.3,20,000/- and towards the repayment of the said amount, the accused issued the cheque dated 23.03.2021 for a sum of Rs.3,20,000/-. When the cheque was presented, the same was returned with an endorsement “funds insufficient”. Immediately notice was issued and inspite of service of notice, the accused did not give any reply nor complied with the demand. Hence, complaint was filed and cognizance was taken and the accused was secured and he did not plead guilty and claimed trial. Hence, the complainant examined herself as P.W.1 and got marked the documents at Exs.P.1 to P5. Though P.W.1 was cross-examined, not led any defence evidence before the Trial Court. In the cross-examination of P.W.1, only evidence was given that cheque was lost and complaint was given to the police and police did not take any steps and hence, private complaint is filed. But no such material is placed before the Court and even not adduced any defence evidence before the Trial Court. The Trial Court having considered the material on record, comes to the conclusion that even though there is no need to lead any defence evidence entering into the witness box, but accused can rebut the same in the cross-examination. But in the cross-examination, nothing is elicited and the same was taken note of by the Trial Court in paragraph No.15 and relies upon the document and even no reply was also given when the notice was served. The defence that the cheque was lost was not taken immediately after the issuance of notice and only afterthought defence was taken and the same was considered by the Appellate Court having re-assessed the material available on record. The Appellate Court in paragraph No.16 taken note of the conduct of the appellant and though ground was urged before the Appellate Court that no opportunity was given to lead defence evidence, even in the Appellate Court also, the accused not assisted the Appellate Court and the same is taken note of in paragraph No.16. The Appellate Court in paragraph No.17 considered the evidence of P.W.1 and comes to the conclusion that nothing worth was elicited in the cross-examination of P.W.1 and while answering point No.2, taken note of the documentary evidence in paragraph Nos.18 and 19 and confirmed the order of the Trial Court.

4. Now the only ground urged by the learned counsel for the revision petitioner before this Court is that a private complaint was filed. The same will not have any bearing on this when there was no any rebuttal evidence before the Trial Court and except a formal cross-examination of P.W.1, nothing is elicited. There is no rebuttal evidence under Section 139 of the Negotiable Instruments Act and scope of revision is very