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TMI Blog2020 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... . Act') in the Court of XV Additional Chief Metropolitan Magistrate, Bangalore City. The Trial Court by its Judgment dated 22.04.2008 convicted the accused for the offence punishable under Section 138 of the N.I. Act and passed the Order on sentence. 2. The summary of the case of the complainant in the Trial Court is that the accused had borrowed a sum of Rs. 9,35,000/- from him on 03.05.2002 and had executed an 'on demand promissory note' and consideration receipt. The loan was taken by the accused for the improvement of his business. Towards the return of the loan amount, the accused had issued a cheque dated 06.09.2004 in favour of the complainant for a sum of Rs. 9,35,000/-, drawn on Jammu and Kashmir Bank Ltd., OTC Road Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same are placed before the Court. 6. Heard arguments from both side. Perused the materials placed before the Court. 7. The points that arise for my consideration are: (i) Whether the Courts below have committed illegality by holding that the accused has committed an offence punishable under S.138 of the N.I. Act, as alleged? (ii) Whether the Judgment of conviction and Order on sentence under revision deserves interference at the hands of this Court? 8. Learned counsel for the revision petitioner in his arguments submitted that the money transaction was between the accused and the father of the complainant but never such a transaction has taken place between the accused and the complainant. During the said money transaction, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged loan transaction. 9. Per contra, learned counsel for the respondent - complainant, in his brief arguments submitted that it is an admitted fact that the complainant and accused were known to each other. Though DW-2 is father of the complainant, but by that itself, it cannot be considered that there was no power for the son to lend money to the accused. He also submitted that issuance of the cheque and the hand- writing upon the cheque have all been admitted by the accused himself. In such a situation, the legal presumption under S.139 of the N.I. Act operates in favour of the complainant. The said presumption coupled with trustworthy evidence of PW-1 has clearly proved the loan transaction and the non re-payment of the loan by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion including that the accused was a building contractor and he had business transactions with his father (father of the complainant). The witness has also stated that the accused had approached him one week prior to the advancement of money to him and the said loan transaction took place in the office of the complainant in one afternoon. The witness has also stated that the accused was acquainted with him since he was visiting his father. These details given by PW-1 since have further remained undenied or undisputed, the fact remains that the accused and complainant were acquainted with each other and as such they were not strangers. It also further goes to show that the accused had financial transactions with the father of the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the complainant that accused was acquainted with him and, at the demand of the accused, he had financially assisted the accused by lending loan in which regard the accused had executed an 'on demand promissory note' and towards repayment of the loan also issued a cheque which is in question herein. DW-1 in the very same examination-in-chief, has nowhere denied the issuance of the cheque in question. Further he has taken a contention that he had handed-over the said cheque to the father of the complainant during the year 2002. When the accused has not denied the issuance of the cheque but has taken a contention that the said cheque was issued to somebody else but not to the payee or holder of the instrument, then it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such loan transaction. 15. The oral and documentary evidence led by the complainant and the admissions made by the accused in his cross-examination and also the non denying of the submissions of PW-1 in his cross- examination would clearly go to establish that the accused had availed a loan of Rs. 9,35,000/- from the complainant and towards the repayment of the same, he had issued the cheque marked at Ex.P4. Thus, apart from a mere legal presumption under S.139 of N.I. Act, the complainant's evidence further crystalises the said presumption and proves it to be a fact. 16. Admittedly the said cheque at Ex.P4 came to be dishonoured with the reason of 'insufficiency of funds' as could be seen from the banker's endorsement w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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