Devaraju vs H.M. Ningaraju

V. Suri Appa Rao, J.—This revision petition is filed challenging the judgment of conviction and order of sentence passed by the II Addl. I Civil Judge (Jr. Dn.) & JMFC, Mysore, in C.C. No. 2339/2009 confirmed by the III Addl. District and Sessions Judge, Mysore, in Crl. A. No. 58/2011, whereby the revision petitioner was found guilty of the offence u/s 138 of N.I. Act and sentenced to pay a fine of Rs. 1,51,000/- out of which Rs. 1,50,000/- shall be paid to the complainant as compensation of Rs. 1,000/- to the State. Aggrieved by the judgment of conviction and sentence passed by the Trial Court and the Appellate Court, the revision petitioner filed this petition on the ground that the Trial Court as well as the Appellate Court failed to consider the evidence of the revision petitioner who has proved that the accused borrowed only Rs. 35,000/- from the complainant and issued blank cheque to the complainant. The same was misused by the complainant and filed a complaint alleging that the accused-revision petitioner borrowed Rs. 1,50,000/-.

For the sake of convenience, the parties are referred to as they are arrayed before the Trial Court.

On 22.08.2006 the accused who is the friend of the complainant borrowed Rs. 1,50,000/- agreeing to repay the same and issued cheque dated 25.10.2006 for Rs. 1,50,000/- drawn on ICICI Bank, Kalidasa Road, Mysore. The complainant thereafter presented the cheque for encashment through Indian Overseas Bank, Vijayanagara, Mysore, but the same was dishonoured with endorsement ''insufficient funds''. After that the complainant issued notice as contemplated u/s 138 of N.I. Act to the accused demanding cheque amount. The accused failed to pay the amount within the time. Therefore, the complainant filed complaint before the Trial Court u/s 138 of N.I. Act.

The Trial Court examined the complainant as PW1 and marked Exs. P1 to P7 and the accused is examined as DW1. Considering the oral and documentary evidence adduced by both the parties, the Trial Court found the accused guilty of the offence u/s 138 of N.I. Act as he issued the cheque in question towards the discharge of legally enforceable debt and also on the ground that the accused failed to rebut the presumption u/s 139 of N.I. Act. The findings of the Trial Court was confirmed by the learned Sessions Judge on the ground that the accused failed to prove that he has borrowed only Rs. 35,000/- and issued blank cheque to the complainant, as contended by him.

Learned Counsel for the complainant respondent submitted that the accused had not produced any kind of evidence to prove that he borrowed only Rs. 35,000/-, having agreed to the issuance of Ex. P1 cheque and admitting the signature the Trial Court was justified in convicting the accused and sentencing him to pay Rs. 1,51,000/-.

As seen from the evidence of the accused, after receiving the notice, he met the complainant and requested for time for payment of amount due under the cheque, several times. But before the Trial Court, the accused contended that he borrowed Rs. 35,000/- only from the complainant and a blank cheque was issued as security to the said loan. The same was misused by the complainant. When the accused had approached the complainant and requested for payment of the amount, it amounts that he has admitted the liability of repayment of Rs. 1,50,000/- as per the demand notice, otherwise he would have issued notice to the complainant stating that he borrowed Rs. 35,000/- only but not Rs. 1,50,000/-. Instead of approaching the complainant and asking for time, he should have issued reply to the notice stating that he is not liable to pay Rs. 1,50,000/- as alleged in the demand notice if he had borrowed Rs. 35,000/- only. But he did not choose to give any reply to the notice to the complainant stating that he issued blank cheque for discharge of debt of Rs. 35,000/- only. The Trial Court as well as the Sessions Court clearly observed that when once the accused admitted the issuance of cheque Ex. P1, the burden shifts on him and a presumption can be drawn u/s 139 of N.I. Act that the cheque Ex. P1 was issued by the accused for discharge of the legally enforceable debt. The accused has not adduced any kind of evidence to rebut the presumption available u/s 139 of N.I. Act in favour of the complainant. Having admitted the issuance of the cheque, the accused is bound to pay the cheque amount which was issued towards discharge of legally enforceable debt. In the absence of any contra evidence on behalf of the accused, there are no grounds to interfere with the judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court.

The revision petition is therefore dismissed.