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9. Learned Magistrate after hearing arguments on
both sides and appreciating the evidence on record has
convicted the petitioner-accused for offence under Section
138 of N.I. Act and sentencing to pay fine of Rs.4,40,000/-
and in default of payment of fine, to undergo simple
imprisonment for a period of six months. The said
judgment has been challenged by the petitioner-accused
before the sessions Court in Criminal Appeal No.118/2018
and the said appeal came to be dismissed on merits
affirming the judgment passed by the trial Court.
10. Learned counsel for the petitioner would
contend that, the cheque-Ex.P1 has been issued as a
security for return of shamiyana items as per agreement-
Ex.P6 dated 30.10.2014 and respondent-complainant has
not returned the said items. Therefore, the petitioner-
accused is not liable to pay the cheque amount. He
further submits that, the petitioner-accused has given a
police complaint and police have recorded the statement
of respondent-complainant which is at Ex.D1 and
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thereafter, the endorsement-Ex.D2 directing the
petitioner-accused to approach the Civil Court stating that
the dispute is civil dispute. PW2 is not a witness to the
agreement-Ex.P6 and DW2 is a witness to the agreement-
Ex.P6. He further submits that, the petitioner is ready to
give cheque amount if he receives the shamiyana items
mentioned in the agreement-Ex.P6. Considering all these
aspects, learned Magistrate erred in convicting the
petitioner-accused and appellate Court erred in affirming
the said judgment of conviction passed by the trial Court.
11. Learned counsel for the respondent submits
that, agreement-Ex.P6 is not in dispute and the petitioner-
accused has also not disputed the issuance of cheque-
Ex.P1 and therefore, the presumption has to be drawn
under Section 139 of N.I. Act. The petitioner-accused has
not rebutted the said presumption. The evidence of PW2
and DW2 proves that the respondent-complainant has
given shamiyana items to the petitioner-accused and
cheque is issued for making payment of the amount as per
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the agreement-Ex.P6. Considering these aspects, learned
Magistrate has rightly convicted the petitioner-accused
and appellate Court has rightly affirmed the judgment of
conviction passed by the trial Court.
12. Having heard the learned counsel for parties,
perused the impugned judgment, trial Court records and
appellate Court records.
13. It is a specific case of the respondent -
complainant that petitioner and respondent were carrying
on shamiyana business and there was a dispute among
them with regard to the said business and they closed
their business and respondent-complainant has agreed to
give the shamiyana items to the petitioner-accused and
the petitioner-accused in turn has agreed to pay
Rs.4,30,000/- as the cost of the said items and there was
an agreement regarding the same dated 30.10.2014 as
per Ex.P6. Ex.P1-cheque is issued by the petitioner-
accused for making payment of amount as mentioned in
the agreement-Ex.P6. The signature on cheque and
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issuance of cheque is admitted by the petitioner-accused.
Therefore, the presumption has to be drawn under Section
139 of N.I. Act that the cheque is issued for discharge of a
debt or other liability. The said presumption drawn under
Section 139 of N.I.Act is a rebuttable presumption. The
standard of proof for rebutting the said presumption is
that of preponderance of probability.
14. The petitioner-accused has not got issued any
reply to the legal notice putting forth his defense. The
petitioner-accused has taken up his defense in the cross-
examination of PW1. The defense of the petitioner-accused
is that, he gave cheque-Ex.P1 as a security under the
agreement-Ex.P6 and as the items are not given to him
and cheque has been misused. The said defense has been
suggested to PW1 in his cross-examination and PW1 has
denied the said suggestion. The evidence of PW2 and DW2
indicate that respondent-complainant has returned the
shamiyana items mentioned in the agreement-Ex.P6 to
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petitioner-accused and cheque is issued for making
payment of amount mentioned in the agreement-Ex.P6.
15. Considering the said admission given by DW2
and evidence of PW2, the contention of petitioner-accused
that he has not received the shamiyana items mentioned
in the agreement-Ex.P6 is not true.
16. Considering the above aspects, trial Court has
rightly held that cheque-Ex.P1 has been issued for
discharge of other liability as per the agreement-Ex.P6 and
appellate Court has rightly affirmed the judgment of
conviction passed by the trial Court. There are no grounds
made out to allow this revision petition.
17. Hence, this Criminal Revision Petition is
dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
KLV
