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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 ..... issued to one Rajesh Bhat for different transaction and for security of the said transaction, he had issued the cheque, but the complainant by misusing the same, presented the said cheque for encashment in the year 2010 by filling the contents of Ex.P1-cheque and thereby he misused the cheque and therefore, the accused has taken such contention - 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 and he never called upon the said Rajesh Bhat to return the cheque in question, if he has discharged the loan in complete, further he also failed to call upon the complainant to return the cheque in question, as it was not issued to him. The burden lies on the accused to prove non- existence of consideration which would lead to the Court to disbelieve the non-existence of consideration either by direct evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the accused are well known to each other, on 12.04.2010 the accused borrowed a hand loan of Rs.50,000/- from the complainant and in consideration thereof, the accused issued the cheque bearing No.972103 for a sum of Rs.50,000/- drawn on Syndicate Bank, Koppa Branch and the accused requested the complainant to present the cheque in the first week of August 2010. Therefore, as per the request of the accused, the complainant presented the said cheque for encashment through CKG Bank, Koppa Branch on 02.08.2010 and the cheque returned with an endorsement as funds insufficient in the account of the accused vide memo dated 04.08.2010, hence, the complainant got issued legal notice dated 11.08.2010 and called upon the accused to pay the amount due under the cheque. On 13.08.2010, the accused received the notice and issued untenable reply and failed to repay the amount due under the cheque. Therefore, the complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I.Act. 5. After institution of the complaint, the Trial Court recorded the sworn statement of the complainant, took cognizance under Section 190(1)(a) of Cr.P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent submitted that both the courts have given concurrent findings and the accused was convicted for the 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 Appellate Court and thus prayed for dismissal of the revision petition. 12. On the basis of the above submissions made by the parties to the lis, the points that would arise for Court's consideration are as under: (1) Whether the revision petitioner proved that there is apparent error on the face of the record in the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as Ex.P1(a). The bank endorsements are also marked as Exs.P2 and P3. On perusal of all these documents, it clearly establishes that the accused has not disputed the issuance of cheque and service of legal notice on him. As per the presumption available under the NI Act, the complainant has complied the legal requirements under Section 138 of the Act. Now, the burden shifts on the accused to disprove the case of the complainant. 17. On perusal of the evidence on record, the accused has taken up the contention that the cheque was issued to one Rajesh Bhat for different transaction and for security of the said transaction, he had issued the cheque, but the complainant by misusing the same, presented the said cheque for encashment in the year 2010 by filling the contents of Ex.P1-cheque and thereby he misused the cheque and therefore, the accused has taken such contention. 18. Whenever, the execution of the negotiable instrument is admitted, then, the Court may draw presumption under Section 118 of N.I.Act and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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