TaxTMI 
TaxTMI 
2020 (11) TMI 431
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....ioner is before this Court in the above revision petition. 2. On 13.06.2003 the respondent/complainant through his account in Canara Bank, Basaveshwarnagar Branch, Bengaluru presented the Cheque Ex.P2 dated 12.06.2003 for realization drawn on Bank of Baroda, Kamakshipalya Branch, Bengaluru purportedly drawn by the petitioner, in his favour for Rs. 2,75,000/-. The said Cheque was dishonoured as per return memo Ex.P3 dated 14.10.2003 with endorsement "Insufficient Funds". He presented the said Cheque again for realization on 02.07.2003. Again the Cheque was dishonoured as per memo Ex.P4 with the endorsement "Account Closed". 3. Thereafter the respondent issued notice Ex.P7 dated 16.07.2003 alleging that the petitioner had borrowed loan ....
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....he petitioner for the offences punishable under Section 138 of NI Act. Learned Magistrate took cognizance of the offence and registered the case in C.C.No.15873/2003. The records disclose that by an administrative order of the Principal City Civil Judge, Bengaluru the case was then transferred to XXII A.C.M.M. and XXIV Additional Small Causes Court, Bengaluru. On securing the petitioner, since he denied the substance of accusation, learned XXII A.C.M.M tried the petitioner. 6. The trial Court by the judgment dated 10.06.2005 convicted the petitioner and sentenced him to pay Rs. 4,00,000/-. The petitioner challenged the said judgment and order in Crl.A.No.1390/2006 before the Fast Track (Sessions) Judge-V, Bengaluru. The Sessions Court al....
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....d the Cheques to him as security and Chennegowda and respondent/ complainant in collusion with each other to make wrongful gain have filed the complaint. However, in his reply notice no such defence referring to Channappa or Channegowda was taken. Therefore, that is only an after thought; ii) The other defence of the accused was that the account on which Ex.P2 was issued was closed in the year 2001 itself. But Ex.D1 the alleged passbook of the said account does not disclose that the account was closed. iii) The accused claimed that he had borrowed Rs. 1,00,000/- from Chennappa in May 1998 and towards that liability he had issued six blank cheques. Out of said amount, his brother-in-law paid Rs. 45,000/- to Chennappa, but n....
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....ioner's factory that is how he was acquainted with the petitioner. According to the notice Ex.P7 and the complaint, the petitioner borrowed loan of Rs. 2,00,000/- in December, 2002 to improve his business and another sum of Rs. 75,000/- in March, 2003 from the respondent and towards discharge of that liability he issued Cheque Ex.P2 for Rs. 2,75,000/- on 12.06.2003. 14. The respondent presented the Cheque for the first time on 13.06.2003 which was returned on 14.06.2003 with the endorsement "Insufficient Funds". The respondent claimed that when he approached the petitioner informing him about the dishonour of the Cheque, petitioner requested him to wait till 02.07.2003 promising to arrange the funds. Therefore, he presented the Chequ....
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.... or requesting the complainant to present the same for the second time. Ex.P4 does not state that the account was closed in 2001. When the accused took a specific defence that his account was closed in 2001 itself, the burden was on him to prove the said fact. Except his self serving testimony and Ex.D1 the alleged passbook of the said account the petitioner did not adduce any other evidence. 19. In Ex.D1 the alleged passbook there is nothing to show that the account was closed in the year 2001. Respondent disputed that Ex.D1. Despite that the petitioner did not summon any records of the bank or bank authorities to prove that the account in question was closed in the year 2001. 20. In reply notice Ex.P11 such defence of closure of the....
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....ouse. In his further cross-examination also PW.1 claimed that apart from the accused, he had rendered financial assistance to others also and earns Rs. 500/- per day by his autorickshaws. 24. In the cross-examination of PW1, petitioner only asked whether PW1 could produce his SB account passbook or the account extract. There was no specific denial of respondent's autorickshow business. In the later part of the cross-examination, it was only suggested that the respondent was not possessing the funds of Rs. 2,75,000/- which he denied. When possession of 5 - 6 autorickshaws and running of the business etc was not disputed, the mere suggestion that he was not possessing funds does not rebut the presumption under Section 139 of the NI Act....