(Prayer: This Crl.RP is filed u/S.397 r/w 401 Cr.P.C praying to 1.set aside the judgment dated 06.12.2023 passed in Crl.A.No.1072/2021 on the file of the Hon'ble LX Addl.City Civil and Sessions Judge, at Bengaluru. 2.to set aside the judgment / order of conviction dated 16.11.2021 passed in C.C.No.7202/2019 on the file of the Honble XX A.C.M.M at Bengaluru by allowing the above petitioner by acquitting the petitioner.)

Oral Order

1. Challenging judgment dated 06.12.2023 passed by LX Additional City Civil and Sessions Judge, Bengaluru (CCH-61), in Crl.A.no.1072/2021 confirming judgment of conviction and order of sentence dated 16.11.2021 passed by XX Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.no.7202/2019, this revision petition is filed.

2. Sri SN Mahesh, learned counsel for petitioner (accused) submitted that revision petition was against concurrent erroneous judgments, convicting him for offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act', for short).

3. It was submitted, respondent (complainant) had filed complaint stating that he was a Class-I Electrical Contractor, while accused was a Civil Contractor and known to complainant since 10 years had obtained loan of Rs.1,00,000/- from complainant in first week of October, 2018, on assurance that same would be repaid within three months. Thereafter on 15.01.2019, paid Rs.5,000/- in cash and issued two post dated cheques bearing no.150081 dated 25.01.2019 for Rs.30,000/- and no.150083 dated 28.01.2019 for Rs.65,000/- both drawn on Axis Bank, Shanthinagar Branch, Bengaluru, which were presented for collection. It was stated, while cheque no.150081 returned dishonoured with endorsement 'payment stopped by drawer' on 25.01.2019, cheque no.150083 returned dishonoured with endorsement 'funds insufficient' on 01.02.2019 and even when demand notice got issued by complainant on 18.02.2019 was served on 20.02.2019, accused failed to repay amount within time and thereby committed offence punishable under Section 138 of NI Act.

4. It was submitted, on appearance, accused had denied charges and sought trial. Thereafter, complainant examined himself as PW.1 and got marked Exhibits-P1 to P7. On appraisal of incriminating material, accused denied same as false. His statement under Section 313 of Cr.PC was recorded. Thereafter, accused stepped into witness-box as DW-1 and got marked Exhibits-D1 to D3. It was submitted, accused had taken up various defences including that there was no legally enforceable debt between parties for issuance of cheque in question, that said cheques no.150078 to 150084 were signed blank cheques with some mentioning date and amount also, issued on 18.07.2016 to one Byranna as security for Chit transaction. Said Byranna had filed C.C.no.25295/2018 against accused by using cheque no.150084 and colluded with complainant herein to file present case by misusing cheque. It was contended accused was Class-I - Contractor while his wife was a Doctor and they were having handsome income and there was no need for borrowing.

5. It was submitted, in his deposition, PW.1 had stated that he knew accused since 10 years but, admits he is unaware of occupation of wife and son of accused, was unaware since when accused was residing at address mentioned in cause title of complaint. He also admitted he does not remember date when accused sought for loan or for its purpose. He admitted that except cheques in question, he did not have any other documents or witnesses to establish transaction of lending Rs.1,00,000/- to accused. It was submitted despite same, trial Court convicted accused. Even appeal filed was dismissed without proper re-appreciation leading to this revision petition. It was submitted, impugned judgments suffer from perversity. It was submitted, both Courts had concurrently failed to appreciate facts in proper perspective and thereby impugned judgments are perverse, calling for interference. On said grounds sought for allowing revision petition.

6. On other hand, Sri Paramashivaiah, learned counsel for complainant opposed revision petition on ground that it was against concurrent findings. It was submitted, accused had contended that cheque in question was part of several cheques issued to Byranna towards Chit transaction and produced Exs.D1 to D3 to establish same, but Ex.D2 - counter foil of cheque book did not mention name of Byranna falsifying contention. It was further submitted there was no dispute about signature and handwriting on cheque. It was submitted, both Courts had on appreciation of entire material on record passed impugned judgments by arriving at well reasoned conclusions leaving no scope for interference.

7. Heard learned counsel, perused impugned judgments and copy of deposition and exhibits made available for perusal by learned counsel.

8. From above, it is seen, this revision petition is by accused challenging concurrent judgments, convicting him for offence punishable under Section 138 of NI Act on ground of perversity of findings. Insofar as first contention about failure of complainant to establish issuance of Exs.P1 and P2 - cheques were for discharge of legally enforceable debt, it is seen one of defences taken was about issuance of signed cheque to Byranna toward Chit transaction, which would amount to admission of signature on cheque. Exs.P1 and P2 bear name of complainant thereby attracting presumption that they were issued for discharge of legally enforceable debt. Indeed, presumption is rebuttable by accused probabilizing defence.

9. In instant case, accused setup two defences i.e. denying legally enforceable debt and secondly, misuse of cheques issued to Byranna. Indeed, there is admission elicited that except cheque in question, complainant did not have any other document or witness to substantiate transaction of complainant lending Rs.1,00,000/- to accused, same would not by itself be sufficient to upset presumption. In order to upset presumption, it would not suffice to setup possible defence but, to establish its probability based on material on record. Though, accused herein produced Exs.D1 to D3 namely cheque-book, counter foil and copy of C.C.no.25295/2018 filed by Byranna against accused herein, perusal of Ex.D2 would indicate entry by accused about issuance of cheques no.150078 to 150084 to Byranna on 18.07.2016 by mentioning amount of each cheque.

10. Ex.D3 mentions about accused herein issuing cheque no.150084 dated 04.07.2018 by accused to Byranna for Rs.2,50,000/- along with another cheque no.830944 dated 04.07.2018 also for Rs.2,50,000/-. Firstly, contents of Ex.D2 cannot be accepted on its face value as it is written by accused himself and would be self-serving. Secondly, unlike in Ex.D3, accused herein did not mention or explanation about other cheque bearing no.830941 involved in said complaint. Apart from above, despite cross-examination, nothing material is elicited to probabilize contention about issuance of signed blank cheques to Byranna or about contents of Exs.P1 and P2 - cheques being filled up by complainant without consent of accused.

11. It is also to be noted that there is no challenge on ground of infraction with time line for presentation of cheque, issuance of demand notice and filing of private complaint. Thus, there is sufficient material to substantiate conviction for offence punishable under Section 138 of NI Act.

12. It is also seen, while passing impugned judgments, trial Court as well as appellate Court have considered material on record and arrived at reasoned conclusions. No ground for interference made out. Hence, revision petition is dismissed.