Sri. Nanjesha @ Ashoka vs M. P. Harisha
2024 Latest Caselaw 234 Kant

Karnataka High Court

Sri. Nanjesha @ Ashoka vs M. P. Harisha on 4 January, 2024

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                                   CRL.RP No. 1132 of 2017
                                                             ®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 4TH DAY OF JANUARY, 2024

                        BEFORE
       THE HON'BLE MR JUSTICE ANIL B KATTI
  CRIMINAL REVISION PETITION No.1132 OF 2017
BETWEEN:

    SRI.NANJESHA@ASHOKA
    S/O.ANNEGOWDA
    AGED ABOUT 42 YEARS
    R/AT NO. RAYAPURA VILLAGE
    SALGAME HOBLI
    HASSAN TALUK
    HASSAN DISTRICT-571 233
                                              ...PETITIONER
(BY SRI.PRATHEEP K.C., ADVOCATE)

AND:

    M.P.HARISHA
    S/O.M.K.PUTTASWAMY, MAJOR
    R/AT MATHIGHATTA VILLAGE
    HALEBEEDU HOBLI
    BELUR TALUK
    HASSAN DISTRICT-581 233
                                            ...RESPONDENT
(BY SRI.PALLAVA R., ADVOCATE)

     THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT DATED 09.10.2017 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN CRL.
A.NO.14/2015 AND IN C.C.NO.257/2011 DATED: 17.01.2015
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HASSAN AND ACQUIT THE
PETITIONER FOR THE OFFENCE P/U/S 138 OF NEGOTIABLE
INSTRUMENT ACT.

     THIS PETITION HAVING BEEN HEARD AND RESERVED ON
29.11.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
                                  -2-
                                           CRL.RP No. 1132 of 2017


                                ORDER

Revision Petitioner/accused feeling aggrieved by the

judgment of First Appellate Court on the file of

II Addl. District and Sessions Judge, Hassan in

Crl.A.No.14/2015, dated 09.10.2017, in confirming the

judgment of Trial Court on the file of Prl.Civil Judge and

JMFC, Hassan in C.C.No.257/2011, dated 17.01.2015

preferred this Revision Petition.

2. Parties to the Revision Petition are referred with

their ranks as assigned in the Trial Court for the sake of

convenience.

3. Heard the arguments of both sides.

4. After hearing both the sides and on perusal of

Trial Court Records with judgment of both the Courts

below, the following points arise for consideration:

1) Whether the impugned judgment under revision passed by the First Appellate Court in confirming the judgment of the Trial Court for the offence punishable under Section 138 of N.I.Act is perverse capricious and legally not sustainable?

2) Whether any interference by this Court is required?

5. On careful perusal of oral and documentary

evidence placed on record, it would go to show that

complainant and accused are known to each other.

Accused has borrowed money of Rs.90,000/- from

complainant for clearing hand loan and domestic purpose

on 05.01.2010 and accused has agreed to repay the said

money within 1 month. On the day of taking hand loan

accused issued post dated cheque bearing No.057192

dated 05.05.2010 Ex.P.1.Complainant presented the said

cheque through his banker Canara Bank, Halebeedu

branch on 03.05.2010 Ex.P.2. The said cheque was

dishonoured as "Funds Insufficient" and the banker of

complainant Canara Bank intimated the said fact under

Ex.P.4 dated 06.05.2010. In turn the banker of

complainant Canara Bank intimated the endorsement of

State Bank of India by intimation dated 24.05.2010

EX.P.3. The complainant issued demand notice dated

28.05.2010 Ex.P.5 through RPAD, the demand notice

issued through RPAD is duly served to the accused vide

acknowledgement card Ex.P.6 and the postal receipt is

produced Ex.P.7. The demand notice was also sent through

under certificate of posting vide receipt Ex.P.8. If the

above referred documents are perused and appreciated

with the evidence of PW.1, then it would go to show that

complainant has complied all the necessary legal

requirements in terms of Section 138 (a) to (c) of

Negotiable Instruments Act, 1881(herein after for brevity

referred to as "N.I.Act"). The complaint is filed within one

month from the date of accrual of cause of action in terms

of Section 142(b) of N.I.Act. Therefore, statutory

presumption in terms of Sections 118 and 139 of N.I.Act

will have to be drawn.

6. In this context of the matter, it is useful to refer

the judgment of Hon'ble Apex Court in APS Forex

Services Pvt. Ltd. Vs. Shakti International Fashion

Linkers and others reported in AIR 2020 SC 945,

wherein it has been observed and held that once the

issuance and signature on cheque is admitted, there is

always a presumption in favour of complainant that there

exist legally enforceable debt or liability. Plea by accused

that cheque was given by view of security and same has

been misused by complainant is not tenable.

7. It is also profitable to refer another judgment

of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and

another reported in 2022 SCC OnLine SC 1131,

wherein it has been observed and held that:-

" Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary."

In view of the principles enunciated in the aforementioned

two judgments of Hon'ble Apex Court, it is evident that

when once issuance of cheque with signature of accused

on the account maintained by him is admitted or proved

then statutory presumption in terms of Section 118 and

139 of N.I. Act will have to be drawn. Now, it is up to the

accused to place rebuttal evidence to displace the

statutory presumption available in favour of the

complainant.

8. In this context of the matter, it is useful to refer

the judgment of Hon'ble Apex Court in Basalingappa Vs.

Mudibasappa reported in 2019 Cr.R. page No. 639 (SC),

wherein it has been observed and held that:

"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".

9. The Hon'ble Apex Court in it's latest judgment

in Rajesh Jain v/s Ajay Singh reported in 2023 SCC

OnLine SC 1275, wherein it has been observed and held

that, once issuance of cheque with signature of accused is

either admitted or proved then, statutory presumption will

have to be drawn in favour of the complainant.

In view of the principles enunciated in both the

aforementioned judgment of Hon'ble Apex Court, it is

evident that the accused to probabilise his defence can

rely on his own evidence or also can rely on material

submitted by complainant. It is not necessary for the

accused to step into witness box to probabilise his

defence.

10. The defence of accused is that cheque Ex.P.1

was given to maternal uncle of accused one Kumar and

the same has been misused by the complainant for filing

this false case. Accused in order to probabilise his defence

apart from relying on the evidence produced by

complainant, also relied on his own evidence as DW.1 and

that of one witness DW.2, so also relied on the documents

Ex.D.1 to Ex.D.6. The Trial Court has rejected the defence

of accused and held that accused has failed to probabilise

his defence. On recording such findings convicted the

accused for the offences alleged against him. The said

judgment of conviction and order of sentence was assailed

by accused before the First Appellate Court. The First

Appellate Court after re-appreciation of evidence on record

dismissed the appeal and confirmed the judgment passed

by Trial Court.

11. Learned counsel for the accused has

vehemently argued that complainant was having no any

balance of Rs.90,000/- in the Bank account maintained in

the State Bank Of India, Hassan, the same is evident from

Bank statement Ex.P.2. The cheque Ex.P.1 is dated

05.05.2010 and the accused was expected to maintain

sufficient balance to honour the cheque on 05.05.2010.

Whereas, complainant has presented the said cheque

through his banker Canara Bank for collection on

03.05.2010 and such pre matured presentation of cheque

by complainant, accused cannot be held liable for

dishonour of cheque Ex.P.2 as "Funds Insufficient". The

Courts below have not properly appreciated the defence of

accused and the evidence of DWs.1 and 2 with the

material evidence brought on record in the cross-

examination of PW.1 and proceeded to convict the accused

only on the basis of statutory presumption available in

favour of complainant. The said approach and appreciation

of evidence by both the Courts below without appreciating

the defence evidence and finding recorded cannot be

legally sustained.

12. Per contra, learned counsel for the complainant

has argued that no doubt cheque Ex.P.1 is deposited with

the banker of the complainant Canara Bank on 03.05.2010

that is prior to the date mentioned in the cheque Ex.P.1.

However, the banker of complainant Canara Bank has

processed the cheque only after the matured date i.e.,

05.05.2010 shown in the cheque Ex.P.1. Accused has not

chosen to examine the Bank Manager of SBI and Canara

Bank to substantiate his contention that the cheque was

presented on prematured date and it was received for

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collection before 05.05.2010 or on that day. The question

of presenting the cheque Ex.P.1 for collection arises only

when it was presented to the banker of accused i.e., SBI.

If the cheque is presented by complainant with his banker

in advance to the date shown in the Ex.P.1 dated

05.05.2010, it does not amounts to presentation of cheque

to the banker of accused for collection. The second

contention of learned counsel for the accused that accused

has produced Ex.D.1 letter of Bank and account statement

of accused from the period dated 01.12.2009 to

06.12.2009 that complainant was having no balance of

Rs.90,000/- in the said period. PW.1 in his evidence has

stated that one week prior to giving loan of Rs.90,000/- to

accused withdrawn the money from Bank and paid.

However, no further question was put as to when exactly

the money was withdrawn. Therefore, without producing

the Bank statement from 07.12.2009 to 04.01.2010 and

without covering the period of one week time prior to

advancing loan cannot be relied to substantiate the

contention of learned counsel for accused. The Courts

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below have rightly appreciated the evidence on record and

no any interference of this Court is warranted.

13. Accused in order to substantiate his

aforementioned defences that he has issued the cheque to

one Kumara who is the maternal uncle of accused and the

said cheque has been misused by complainant for filing

this false case relied on his own evidence as DW.1 and

Somalinge Gowda as DW.2. Accused as DW.1 has deposed

to the effect that there was no transaction between him

and the complainant and he has not taken any hand loan

of Rs.90,000/- on 05.01.2010 and never issued cheque

Ex.P.1 to the complainant.

13(a). DW.1 further deposed to the effect that he

has taken Rs.10,000/- loan from Kumara who is the

maternal uncle of complainant and at the time of availing

the said loan he has issued blank signed cheque. Accused

has repaid the entire amount of Rs.10,000/- taken from

Kumara. When accused has demanded to return his blank

signed cheque he stated that the cheque was misplaced

and on securing he will give it to him. In May 2010 he

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received demand notice from complainant. Thereafter, he

went to Kumar, maternal uncle of complainant and asked

him to return the blank signed cheque along with

Somalinge Gowda. However, he has given evasive reply.

Complainant by misusing the said cheque has filed this

false case.

14. Accused in support of such oral evidence relied

on the documents Ex.D.1 to Ex.D.6 and also examined

Somalinge Gowda as his witness DW.2. However, he has

not supported the case of accused and he has been

declared as hostile witness. During the course of cross-

examination he admits that in June 2010 accused asked

him and Basavegowda for holding panchayath. Further,

the said Basavegowda took complainant and DW.2

Somalinge Gowda to the maternal uncle of complainant.

The witness did not support having held any panchayath.

However, he admits to the suggestion that maternal uncle

of complainant agreed to return the cheque. This witness

has not been cross-examined by complainant.

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15. Learned counsel for the accused has

vehemently argued that when there is no cross-

examination by complainant to the facts admitted during

cross-examination after treating the witness hostile then

the dependable portion of evidence of hostile witness has

to be relied. In support of such contention reliance is

placed on the judgment of Hon'ble Apex Court in Rajesh

Yadav and Another Vs. State of Uttar Pradesh

reported in (2022) 12 SCC 200, wherein, it has been

observed and held that:

" The witness may depose in favour of a party in whose favour it is meant to be giving through his chief-examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief-examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief-examination could be termed as evidence. Such evidence would become complete after the cross-examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and

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appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief-examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion".

In the present case DW.2 Somalinge Gowda has

categorically admitted that he do not know the transaction

between complainant and accused. The aforementioned

admissions of DW.2 in the cross-examination is only to the

extent that maternal uncle of complainant Kumara has

agreed to arrange giving of cheque to the accused. The

said admission does not refer to any transaction between

complainant and accused. Other than the self interested

version of DW.1 that for the loan of Rs.10,000/- taken by

him from the maternal uncle of complainant, he has issued

cheque to him Ex.P.1 and the occasion for complainant to

come in possession of said cheque has not been

substantiated by the evidence on record. The

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aforementioned admissions in the cross-examination of

DW.2 without making any proper foundation and evidence

to substantiate the said fact cannot take away the case of

complainant.

16. Learned counsel for accused on the basis of

Ex.P.2 under which the cheque was presented to the

Canara Bank dated 03.05.2010 has vehemently argued

that cheque Ex.P.1 prematurely presented and the

accused is only answerable to maintain sufficient balance

in his account as on the date of issuance of cheque dated

05.05.2010. Therefore, in view of the pre matured

presentation of the cheque on 03.05.2010 Ex.P.2 through

banker of complainant, there was no legally enforceable

debt as on 03.05.2010. Therefore, the statutory

presumption drawn by both the Courts below in terms of

Section 118 and 139 of N.I.Act cannot be legally

sustained. Learned counsel for appellant in support of

such contention relied on the judgment of Hon'ble Apex

Court in A.R.Dahiya Vs. Securities And Exchange

Board of India. Wherein, it has been held that in terms

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of Section 6 of N.I.Act post dated cheque held by the

complainant amounts to promise to pay and that promise

would be fulfilled on the date mentioned on the cheque,

wherein it has been observed and held at para 17 as

under:

"The next contention that was raised by the counsel for the appellant was that as the cheques presented had been dishonoured on presentation, the said transaction did not culminate in an acquisition. It has already been held beyond doubt that the post-dated cheques issued by the appellant in favour of HSIDC were in consideration of the buy-back of the shares held by HSIDC in the target Company. The appellant had submitted that the cheques were post-dated because he was suffering from a liquidity crunch. In our view, the post-dated cheques amounted to a promise to pay and that promise would be fulfilled on the date mentioned on the cheque. Thus, this promise to pay amounted to a sale of shares/equity. The subsequent dishonouring of the post-dated cheque would have no bearing on the case".

In the said case before Hon'ble Apex Court, the post dated

cheque was admittedly presented prior to the date

mentioned on the cheque to the bank on which it was

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drawn which was supposed to pay the amount covered

under the cheque. In the present case as per the bank

endorsement dated 06.05.2010 Ex.P.4, the cheque was

presented for collection on 06.05.2010 as per the seal

which could be found on the cheque Ex.P.1 as it was

received for payment through clearing house, Hassan.

17. Indisputably, the cheque Ex.P.1 is dated

05.05.2010. Complainant presented/deposited the said

cheque through his banker Canara Bank vide challan of

Canara Bank dated 03.05.2010. The seal found on cheque

Ex.P.1 would go to show that the cheque was received for

payment through clearing house on 06.05.2010 and the

same is admittedly presented after the date shown in the

cheque dated 05.05.2010. Complainant has issued

demand notice Ex.P.5 through RPAD and the same is duly

served vide acknowledgement card Ex.P.6. The demand

notice was sent through UCP Ex.P.8, the receipt of demand

notice by accused is not disputed. However, in spite of due

service of demand notice accused has not replied to the

same by making proper foundation on the first available

opportunity to put forth the defence of accused. Accused

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has also not made any written communication after his

appearance in this case, before seeking permission to

cross-examine PW.1 on the defences put forth by the

accused during the trial.

18. The learned counsel for accused relied on the

Co-ordinate Bench judgment of this Court in Smt.Pavithra

w/o Late Somashekar Vs. Smt.Sheela V w/o Chikkanna

in Criminal Appeal No.439/2018(A) c/w Criminal Appeal

No.511/2019(A) dated 09.10.2023. In the said case

accused has replied to the demand notice issued by the

complainant and put forth defence as the cheque was

issued for security for chit transaction. The defence put

forth by the accused was found to be insufficient.

Therefore, acquittal order passed by the First Appellate

Court came to be confirmed. In the present case the

accused has not replied to the demand notice and not

made any foundation to prove his defence. It is only for

the first time during the evidence of DW.1 defence was

taken that cheque Ex.P.1 was given to maternal uncle of

complainant i.e., Kumara. However, in the cross-

examination of PW.1 it is suggested that the cheque was

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issued to relative of complainant and the same is denied

by the complainant. The accused for the first time in his

evidence introduced that he has given cheque to the

maternal uncle of complainant Kumara and the

complainant has misused the said cheque. Accused has

not offered any explanation as to the occasion or

transaction between maternal uncle and complainant, so

as to reasonably believe that complainant has an occasion

to come in possession of the cheque Ex.P.1. Therefore, the

aforementioned circumstances of the present case, the

judgment Co-ordinate Bench relied by the learned counsel

for accused has no application to the facts of the present

case.

19. Whether the presentation of cheque for

collection through banker of complainant Canara Bank on

03.05.2010 Ex.P.2 amounts to presentation of the cheque

for collection to the banker of accused and it amounts to a

pre matured presentation of cheque or an endorsement of

the State Bank of India at Ex.P.4, on 06.05.2010 with the

seal of Canara Bank found on Ex.P.1 that the cheque was

received for payment through clearing house, Hassan on

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06.05.2010 is the date of presentation has been called in

question in the present case.

20. Learned counsel for accused has argued that

date of presentation of the cheque by complainant through

his banker dated 03.05.2010 is pre matured presentation

of cheque. Whereas, learned counsel for complainant has

argued that complainant has deposited the cheque Ex.P.1

through his banker Canara bank on 03.05.2010 vide bank

challan Ex.P.2 and it is not a presentation of cheque for

collection from the banker of accused State Bank of India

Hassan branch. Learned counsel for accused and

complainant both have addressed some interesting

arguments on the interpretation of term "Deposit" and

"Presentation". According to learned counsel for

complainant, it is not the presentation of cheque for

collection to the banker of accused and in fact it is deposit

of the cheque through challan Ex.P.2 on 03.05.2010. The

banker of the complainant has processed the cheque only

after maturity of the cheque dated 05.05.2010. In view of

the endorsement of the bank found on Ex.P.1, cheque was

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presented to the banker of accused for collection on

06.05.2010. Whereas, counsel for accused has argued that

it amounts to presentation of the cheque on 03.05.2010

and there is no provision under the N.I.Act for the deposit

of the cheque.

21. Learned counsel for the Revision Petitioner

adverting to Section 6, 64 and 66 of N.I.Act has submitted

that the presentation of cheque through the banker of

complainant on 03.05.2010 vide Bank challan Ex.P.2

amounts to pre matured presentation of the cheque and

as on the said date there was no any legally enforceable

debt which accused has promised to pay the same to

complainant. On the other hand the learned counsel for

complainant has argued that, in fact it is depositing of the

cheque Ex.P.1 through banker of complainant on

03.05.2010. The banker of complainant has processed the

cheque Ex.P.1 only on 06.05.2010 which is after the due

date shown in the cheque Ex.P.1 dated 05.05.2010. In this

context of the matter it is profitable to refer Section 6 of

N.I.Act for ready reference which reads as under:

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"[6. "Cheque".-A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation I.-For the purposes of this section, the expressions-

[(a) "a cheque in the electronic form" means a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be;]

(b) "a truncated cheque" means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing.

Explanation II.-For the purposes of this section, the expression "clearing house" means the clearing house managed by the Reserve Bank of India or a clearing house recognized as such by the Reserve Bank of India.] Explanation III.-For the purposes of this section, the expressions "asymmetric crypto system", "computer resource", "digital signature", "electronic form" and "electronic signature" shall have the same meanings respectively assigned to them in

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the Information Technology Act, 2000 (21 of 2000).]"

The presentation of bill of exchange or a cheque is covered

under cheque chapter V of the N.I.Act and relevant

provision for considering the dispute involved in the

present case is Section 64 and 66 of N.I.Act, the same is

reproduced for ready reference:

"64. Presentment for payment.-[(1)] Promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf of the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder.

[Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.] Exception.-Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof.

[(2) Notwithstanding anything contained in section 6, where an electronic image of a truncated cheque is presented for payment, the drawee bank is entitled to demand any further information

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regarding the truncated cheque from the bank holding the truncated cheque in case of any reasonable suspicion about the genuineness of the apparent tenor of instrument, and if the suspicion is that of any fraud, forgery, tampering or destruction of the instrument, it is entitled to further demand the presentment of the truncated cheque itself for verification:

Provided that the truncated cheque so demanded by the drawee bank shall be retained by it, if the payment is made accordingly.]"

66. Presentment for payment of instrument payable after date or sight.- A promissory note or bill of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity."

On plain reading of the aforementioned Section 6, 64 and

66 of N.I.Act, it would go to show that the cheque has to

be drawn in terms of Section 6 of N.I.Act. In terms of

Section 64 of N.I.Act, cheque must be presented for

payment to the maker, acceptor or drawee thereof

respectively by or on behalf of the holder as hereinafter

provided. In default of such presentment, the other

parties thereto are not liable thereon to such holder. In

terms of Section 66 of N.I.Act is a promissory note or bill

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of exchange, made payable at a specified period after date

or sight thereof, must be presented for payment at

maturity. It means that the cheque has to be presented

for collection for payment at maturity. The date on which

it was actually presented to the banker of accused is a

material date which can be said as date of presentation of

the cheque.

22. In the present case cheque Ex.P.1 was drawn

on 05.05.2010 and the same was presented for collection

through banker of complainant Canara Bank on

03.05.2010 vide Ex.P.2. Whether it is a presentation or

deposit of a cheque with the banker of complainant on

03.05.2010 makes no difference and it does not amount to

presentation of cheque to State Bank of India. Wherein,

accused has maintained an account to honour the cheque.

In terms of Section 64 of N.I.Act presentment is to be

made to the bank on which cheque Ex.P.1 was drawn who

promises the holder in due course to pay the money

covered under cheque. In terms of Section 66 of N.I.Act

cheque must be presented for payment at maturity. The

conjoint reading of Section 64 and 66 of N.I.Act would

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manifestly makes it clear that cheque must be presented

for payment at maturity by the person who is holder in

due course. The banker of the complainant i.e., Canara

Bank has processed the cheque only after matured date on

05.05.2010 as shown in Ex.P.1. In view of the seal

appearing on Ex.P.1 of the banker of complainant, it would

go to show that the banker of complainant Canara Bank

has processed the cheque and the same has been received

for payment through clearing house, Hassan. The said

undisputed endorsement would go to show that the

cheque Ex.P.1 was presented for collection from State

Bank of India where the accused has maintained the

account and the said cheque has been dishonoured for

want of sufficient fund in the account of accused. The

presentation of the cheque is after the maturity date i.e.,

on 05.05.2010 as could be found from the seal appearing

on Ex.P.1 that banker of complainant has presented the

said cheque to the State Bank of India for payment on

06.05.2010. Therefore, under these circumstances the

contention of learned counsel for accused that cheque was

pre maturely presented by complainant on 03.05.2010 and

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there was no legally enforceable debt as on the said date

cannot be legally sustained.

23. When once issuance of cheque with the

signature of accused on the account maintained by him is

either admitted or proved then statutory presumption in

terms of Section 118 and 139 of N.I.Act will have to be

drawn. If the accused failed to probabilise his defence or

the defence raised by the accused cannot be legally

sustained then in that event, the statutory presumption in

terms of Section 118 and 139 of N.I.Act will continue to

operate in favour of complainant.

24. The Courts below have rightly appreciated the

material evidence placed on record and findings recorded

in holding the accused guilty for the offence punishable

under Section 138 of N.I.Act were based on the material

evidence on record. Therefore, the said findings recorded

by both the Courts below does not call for any interference

by this Court.

25. Now coming to the question of imposition of

sentence is concerned. The Trial Court has sentenced the

accused to pay a fine of Rs.1,10,000/- and in default to

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undergo simple imprisonment for 1 year. Out of the fine

amount Rs.1,05,000/- was ordered to be paid to the

complainant as compensation and remaining Rs.5,000/- is

ordered to be defrayed as prosecution expenses. Looking

to the facts and circumstances of the case, the imposition

of sentence as ordered by the Trial Court which is

confirmed by the First Appellate Court also does not

warrant any interference by this Court. Consequently,

proceed to pass the following:

ORDER

Revision petition filed by the Revision Petitioner is

hereby dismissed as devoid of merits.

Registry to send back the records to Trial Court with

a copy of this order.

SD/-

JUDGE