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TMI Blog2023 (12) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... Itenerate at Koppa, Chikkamagaluru District in C.C.No.76/2018 (CC No.476/2010) and judgment dated 01.08.2019 passed by the learned Second Additional District and Sessions Judge at Chikkamagaluru in Criminal Appeal No.17/2019 and prayed to acquit the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act. 3. For the sake of convenience, the parties are referred to as per their ranking before trial court. The petitioner is the accused and the respondent is complainant before the trial court. 4. The brief facts of the complainant's case is as under: The complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act (fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to rebut the claim of the complainant, accused himself examined as DW1 and he relied upon 2 documents as per Exs.D1 and D2. 8. On the basis of the oral and documentary evidence, the Trial Court convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced the accused to pay the fine of Rs.75,000/- to the complainant and in default to pay the fine amount, the accused shall undergo simple imprisonment for the period of three months. 9. Aggrieved by the judgment of conviction and sentence passed by the Trial Court, the accused preferred Criminal Appeal No.17/2009 before the Second Additional District and Sessions Judge at Chikkamagaluru. In turn, the Appellate Court confirmed the order of Trial Court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 138 of the N.I. Act. The complainant has proved his case beyond reasonable doubt and therefore, both the Courts have drawn presumption under Section 138 of Negotiable Instrument Act. The learned counsel for the respondent submits that if the loan was discharged in the year 2010 itself, the accused ought to have issued legal notice to the complainant and insist for return of cheque, but the accused failed to do so. Further, if the accused had discharged the loan in question, he would have issued legal notice or lodge the complaint against one Rajesh Bhat for misusing of the cheque in question. Hence, the learned counsel justified the judgment of conviction and sentence passed by the Trial Court as well as the First Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal notice issued to the accused was served upon him. Ex.P8 is the reply notice issued by the accused to the counsel for the complainant. On perusal of the material on record, the complainant proved his case by oral and documentary evidence. Now, the burden shifts on the accused. 14. To rebut the claim of the complainant, the accused himself examined as DW1 and he relied upon Ex.D1 CD and Ex.D2 returned postal cover. 15. On perusal of the oral testimony of PW1, DW1 and the documents relied upon by both the parties, it appears that the accused had borrowed a sum of Rs.50,000/- from the complainant and in consideration thereof, he had issued Ex.P1-cheque for a sum of Rs.50,000/- and on 02.08.2010, the complainant presented the said chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court shall draw presumption under Section 138 of N.I Act in favour of holder of negotiable instruments. 19. If cheque was issued in relation to other transaction, it should be construed as the same was issued towards present debt or present transaction and it was issued towards legally enforceable debt. 20. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. 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. 25. Looking into any angle, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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