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2021 (11) TMI 984 - KARNATAKA HIGH COURTDishonor of Cheque - accused failed to rebut the presumption available to the complainant - legally recoverable debt or not - denial of all incriminatory materials - Section 138 of the Negotiable Instruments Act - HELD THAT:- In the case on hand, issuance of cheque and the signature of the accused on the cheque stands proved by placing necessary oral and documentary evidence on record. Admittedly, there was a business transaction between the accused and the complainant in respect of purchase of a LGV Tata vehicle bearing No. KA-20/7567. Ex. P-8 is the Account statement produced by the complainant which shows that accused was due in a sum of ₹ 1,50,000/- and the cheque came to be issued towards the legally recoverable debt i.e., the amount due by the accused to the complainant as per Ex. P-8. The cheque on presentation, admittedly, was dishonoured and thereafter, legal notice came to be issued and there is no compliance of callings of notice. Therefore, all ingredients to attract offence under Section 138 of the Negotiable Instruments Act stands established by placing necessary oral and documentary evidence on record. No doubt, the accused got herself examined as DW-1, wherein she tried to rebut the presumption available to the complainant under the provisions of section 118 and 139 of the Negotiable Instruments Act, but the evidence adduced by the accused was not sufficient to rebut the said presumption and therefore, the learned Trial Magistrate recorded an order of conviction for the accused for the offence punishable under section 138 of the Negotiable Instruments Act, and the learned Judge in the first appellate court rightly re-appreciated the material evidence on record and confirmed the finding recorded by the learned Trial Magistrate. On perusal of the cross examination of PW1, it is seen that there is no proper proof of challenging the entries in Ex. P-8 which is the accounts statement. Admittedly, the defence taken by the accused is that the cheque is issued for the purpose of security was not at all established and accordingly, this court is of the considered opinion and both the courts have passed an order of conviction based on the sound and logical reasons and therefore, it does not suffer from any legal infirmity or perversity. Criminal Revision Petition is dismissed.
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