BUDAY MIYAN Vs. M.C. VENKATESH

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned counsel for the Respondent and perused the records.

(2.) This appeal is preferred against the judgment of acquittal passed in C.C.No.84/2003 on the file of the Principal Civil Judge and JMFC, Channapatna in acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act").

(3.) The learned counsel for the appellant, Mr. S.R. Hegde Hudlamane seriously contends before this Court that the Respondent has not denied the issuance of the cheque and also he has taken up the contention that the said cheque was issued as a security with respect to some transactions and not in lieu of repayment of any debt or liability. Therefore, the burden is on the accused to establish the same before the Trial Court. Except cross examining PW1, the Respondent has not entered into the witness box and not established this particular aspect. Therefore, he contended that the presumption regarding existence of debt or liability has to be raised under Section 139 of the NI Act in favour of the complainant. As the accused has not rebutted the presumption under Section 139 of the NI Act, therefore, the accused is liable to be convicted for the offence under Section 138 of the NI Act.