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2023 (12) TMI 669 - KARNATAKA HIGH COURTDishonour of Cheque - insufficient funds - discharge of debt or not - apparent error or not, on the face of the record in the judgment of the Trial Court as well as the First Appellate Court in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act - HELD THAT:- In the instant case, the complainant has produced the cheque in question and it is marked as Ex.P1. The signature of the accused is also marked as Ex.P1(a). The bank endorsements are also marked as Exs.P2 and P3. On perusal of all these documents, it clearly establishes that the accused has not disputed the issuance of cheque and service of legal notice on him. As per the presumption available under the NI Act, the complainant has complied the legal requirements under Section 138 of the Act. Now, the burden shifts on the accused to disprove the case of the complainant. On perusal of the evidence on record, the accused has taken up the contention that the cheque was issued to one Rajesh Bhat for different transaction and for security of the said transaction, he had issued the cheque, but the complainant by misusing the same, presented the said cheque for encashment in the year 2010 by filling the contents of Ex.P1-cheque and thereby he misused the cheque and therefore, the accused has taken such contention - In the instant case, the complainant has proved that on the relevant date, he lent loan to the accused and in consideration thereof, the accused issued cheque Ex.P1 in favour of the complainant. Further the accused has not placed any material before the Court to prove under what circumstances he issued cheque in favour of the complainant. Further, the accused has taken up a contention that he discharged the loan of one Rajesh Bhat and he never called upon the said Rajesh Bhat to return the cheque in question, if he has discharged the loan in complete, further he also failed to call upon the complainant to return the cheque in question, as it was not issued to him. The burden lies on the accused to prove non- existence of consideration which would lead to the Court to disbelieve the non-existence of consideration either by direct evidence or by probable defence to show that the existence of consideration was improbable, doubtful or illegal, but the accused has not produced any kind of evidence to show that existence of consideration was improbable, doubtful or illegal. Therefore, Ex.P1-cheque was issued towards legally enforceable debt - When once issuance of cheque is proved, the presumption under Section 138 of N.I.Act would arise with regard to consideration. But the accused has not discharged the debt in question. Whether the accused has issued cheque for repayment of loan or as security or it was discharged prior to the current transaction, makes no difference under Section 138 of the N.I.Act. The legal consequence reamaining same without any distinction. The judgment of the Trial Court as well as the First Appellate Court is in accordance with law. The Trial Court as well as the First Appellate Court have passed well reasoned orders. Hence no interference is called for and there is no error on the face of the record - Revision petition dismissed.
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