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TMI Blog2021 (8) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the complainant in the Trial Court is that the accused was a known person to the complainant. At the request of the accused for a loan, the complainant advanced him a sum of Rs. 15,00,000/- by cash as a loan which was returnable within three years along with interest at the rate of 18% p.a. In that regard the accused got issued three cheques in favour of the complainant out of which one cheque was drawn on Canara Bank, Kalidasa Layout, Bengaluru for a sum of Rs. 8,00,000/-. Remaining two cheques bearing Nos. 150791 and 601592 both drawn on Bank of Maharashtra for a sum of Rs. 2,00,000/- and Rs. 5,00,000/- respectively were also given to the complainant. The cheque for a sum of Rs. 8,00,000/- drawn on the account of the wife of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, the accused has preferred this revision petition. 4. The Trial Court and the Sessions Judge's Court records were called for and the same are placed before the Court. 5. Original complainant since reported to be dead his legal representatives were permitted to be brought on record by Order of this Court dated 20.01.2021 and accordingly they were brought on record and they are being represented by their learned counsel. 6. Perused the materials placed on record. Though the matter is listed for admission, with the consent from both side matter is taken up for final disposal and accordingly heard submissions from both side. 7. The point that arises for my consideration is, "whether the Judgment of conviction and Order on sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the presumption formed in favour of the complainant has been successfully rebutted by the accused who by sending a reply as per Ex.P10 at the earliest point of time has stated that the accused had approached the complainant for a hand loan of Rs. 15,00,000/- for the performance of the marriage of his daughter. However, at that time the complainant had taken eleven blank cheques from the accused out of which three cheques bearing Nos. 601590, 601591 and 601592 were duly signed by the accused. He has also stated that a sum of Rs. 8,00,000/- was returned through cheque which was encashed by the complainant. Remaining Rs. 7,00,000/-has been paid to the complainant by the accused after mortgaging his house. However, though the entire loan wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000/- which cheque was drawn by the wife of the accused. His contention is about the alleged outstanding of a sum of Rs. 7,00,000/-. However he denied a suggestion made to him in his cross examination that the said Rs. 7,00,000/- was given to him in the form of cash. 12. The accused as D.W.1 in his examination-in-chief has stated that the alleged balance amount of Rs. 7,00,000/- was paid to the complainant in cash after mortgaging his house in the year 2012. He has specifically admitted that in the year 2011 he had taken a loan of Rs. 15,00,000/- from the complainant. Thus when the accused has admitted the availment of loan of Rs. 15,00,000/- from the complainant and when the alleged outstanding amount according to complainant is Rs. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or not issued by the alleged drawer. Even though the alleged 'stop payment' instruction is shown to have been given on 22.06.2012, it cannot be ignored of the fact that the cheques in question are dated 22.01.2013 which means that they have been drawn subsequent to the alleged 'stop payment' instruction. Even though the accused has also stated that he had filed a police complaint against the complainant on 07.06.2012 but admittedly the police, except issuing an endorsement in form 76A as can be seen at Ex.D3 have not filed any charge-sheet against the complainant. Further the accused has produced a copy of the application said to have been filed by him for housing loan and also statement of account at Exs.D4 and D7 respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the intervention of this Court is warranted in the impugned judgments. Accordingly, I proceed to pass the following: ORDER The Criminal Revision Petition is partly allowed. Though the judgment of conviction passed by the learned XIV Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C. No. 51595/2013, dated 23.09.2015, holding the accused guilty of the offence punishable under Section 138 of N.I. Act, which was confirmed by the learned LVII Addl. City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru (CCH-58), in Criminal Appeal No. 25136/2015, dated 05.04.2016, is hereby confirmed, however, the Order on sentence passed by the learned XIV Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C. No. 51595/2013, dated 23.09.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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