ORDER : The present respondent had instituted a complaint against the present revision petitioner under S.200 of the Code of Criminal Procedure, 1973 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, for brevity referred to as ‘the N.I. Act’) in the Court of XV Additional Chief Metropolitan Magistrate, Bangalore City. The Trial Court by its Judgment dated 22.04.2008 convicted the accused for the offence punishable under Section 138 of the N.I. Act and passed the Order on sentence. 2. The summary of the case of the complainant in the Trial Court is that the accused had borrowed a sum of Rs.9,35,000/from him on 03.05.2002 and had executed an ‘on demand promissory note’ and consideration receipt. The loan was taken by the accused for the improvement of his business. Towards the return of the loan amount, the accused had issued a cheque dated 06.09.2004 in favour of the complainant for a sum of Rs.9,35,000/, drawn on Jammu and Kashmir Bank Ltd., OTC Road Branch, Bengaluru. When the said cheque was presented by the complainant the same came to be dishonoured by the banker’s endorsement as ‘funds insufficient’. Since the accused did not repay the cheque amount even after serving a legal notice dated 17.09.2004 upon him, the complainant was constrained to file the complaint before the Court. The accused appeared through his counsel and contested the matter. In order to prove the alleged guilt against the accused, complainant himself got examined as PW1 and got marked documents at Exs.P1 to P9. The accused got himself examined as DW1 and got examined one Prakash Chand as DW2 and got marked documents at Exs.D1 to D13. After hearing arguments from both side, the Trial Court by its impugned Judgment of conviction and Order on sentence dated 22.04.2008, convicted the accused for the offence punishable under S.138 of the N.I. Act and sentenced him accordingly. 3. Aggrieved by the same, the accused preferred an appeal before the learned Sessions Judge, City Fast Track Court – VII, Bangalore City in Criminal Appeal No.422/2008, which Court, after hearing both side, by its considered Judgment dated 26.10.2010, dismissed the appeal by confirming the Judgment of conviction passed by the Trial Court. It is challenging the said Judgment of conviction and Order on sentence, the accused has preferred this revision petition. 4. The respondent is being represented by his learned counsel. 5. It is challenging the said Judgment of conviction and Order on sentence, the accused has preferred this revision petition. 4. The respondent is being represented by his learned counsel. 5. Trial Court records were called for and the same are placed before the Court. 6. Heard arguments from both side. Perused the materials placed before the Court. 7. The points that arise for my consideration are: (i) Whether the Courts below have committed illegality by holding that the accused has committed an offence punishable under S.138 of the N.I. Act, as alleged? (ii) Whether the Judgment of conviction and Order on sentence under revision deserves interference at the hands of this Court? 8. Learned counsel for the revision petitioner in his arguments submitted that the money transaction was between the accused and the father of the complainant but never such a transaction has taken place between the accused and the complainant. During the said money transaction, the father of the complainant used to collect blank cheques from the accused. However he failed to return some of the cheques even though the loans were repaid, on the pretext that the cheques were misplaced by him and he would return the same later. Further, he, joined by his son who is the complainant has misused one such cheque by presenting the same in the name of the complainant and instituting a false complaint through the said son. Learned counsel further submitted that the said father has been examined by the accused as DW2 who has admitted the financial transaction between him and the accused. This supports the contention of the accused that the financial transaction was with DW2 but not with the accused. Learned counsel also submitted that when the complainant says that the loan was given through a cheque which was got encashed by the accused, nothing had prevented him from producing the statement of bank account. However, by not producing the same, he has failed to prove the alleged loan transaction. He concluded his arguments by submitting that, had really such a loan transaction been taken place between the complainant and the accused, the said complainant would have definitely demanded either the repayment of the loan or interest on the alleged loan amount from the date of alleged loan transaction till the date of filing of the complaint which was nearly for a period of two years. The inaction on the part of the complainant also raises suspicion with respect to the alleged loan transaction. 9. Per contra, learned counsel for the respondent complainant, in his brief arguments submitted that it is an admitted fact that the complainant and accused were known to each other. Though DW2 is father of the complainant, but by that itself, it cannot be considered that there was no power for the son to lend money to the accused. He also submitted that issuance of the cheque and the handwriting upon the cheque have all been admitted by the accused himself. In such a situation, the legal presumption under S.139 of the N.I. Act operates in favour of the complainant. The said presumption coupled with trustworthy evidence of PW1 has clearly proved the loan transaction and the non repayment of the loan by the accused. As such, both the Courts below have rightly appreciated the evidence led before it and have convicted the accused for the alleged guilt. 10. The complainant in his evidence as PW1 in the examination-in-chief itself has stated that the alleged loan given to the accused was through a cheque bearing No.408387 dated 03.05.2002 drawn on Canara Bank, Chickpet Branch, Bengaluru. The same was duly encashed by the accused. He has also stated that after repeated demands and personal approaches made by him to the accused, the accused towards the repayment of the loan amount had issued to him the cheque in question for a sum of Rs.9,35,000/on 06.09.2004. It is the said cheque which came to be dishonoured when presented for realisation, as such, he got issued a legal notice dated 17.09.2004 to the accused under ‘registered post with acknowledgement due’ and as well under ‘certificate of posting’. He has also stated that the notice issued under registered post returned to the sender with a postal shara “not claimed”. However, the notice sent under certificate of posting since has not been returned to the sender, the same is presumed to be served upon him. Further, the accused did not reply or respond to the said notice. 11. Though PW1 was cross-examined from the accused’ side in detail, but nowhere in the cross-examination the accused has disowned the cheque in question. Further, the accused did not reply or respond to the said notice. 11. Though PW1 was cross-examined from the accused’ side in detail, but nowhere in the cross-examination the accused has disowned the cheque in question. On the other hand, he has elicited some more details about the alleged transaction including that the accused was a building contractor and he had business transactions with his father (father of the complainant). The witness has also stated that the accused had approached him one week prior to the advancement of money to him and the said loan transaction took place in the office of the complainant in one afternoon. The witness has also stated that the accused was acquainted with him since he was visiting his father. These details given by PW1 since have further remained undenied or undisputed, the fact remains that the accused and complainant were acquainted with each other and as such they were not strangers. It also further goes to show that the accused had financial transactions with the father of the complainant. The said finding also gets supported from the evidence of DW2 who is none else than the father of the complainant. The said witness has admitted suggestion that the accused had business transactions with him and in that regard, he was issuing money to the accused through cheques. Thus the financial transaction between the father of the complainant and the accused has been admitted by the accused himself in his evidence. Further, DW2 has categorically denied that the alleged cheque in question was a blank cheque collected by him from the accused and the same was misused in the name of his son i.e. the complainant. 12. DW2 also specifically denied a suggestion that the alleged financial transaction was only between himself and the accused and that there was no transaction between his son / complainant and the accused. By stating so, DW2 has also shown that the alleged financial transaction was not confined between himself and the accused but there was such a transaction between the complainant and the accused also. 13. The accused who got himself examined as DW1 has stated that, in his transaction with DW2 who is the father of the complainant, a blank cheque duly signed by him and an ‘on demand promissory note’ were given by him to the father of the complainant. 13. The accused who got himself examined as DW1 has stated that, in his transaction with DW2 who is the father of the complainant, a blank cheque duly signed by him and an ‘on demand promissory note’ were given by him to the father of the complainant. By stating so, he has shown that he was in the habit of borrowing money by executing ‘on demand promissory notes’ and was issuing cheques. The said statement of DW1 would rather support the contention of the complainant that accused was acquainted with him and, at the demand of the accused, he had financially assisted the accused by lending loan in which regard the accused had executed an ‘on demand promissory note’ and towards repayment of the loan also issued a cheque which is in question herein. DW1 in the very same examination-in-chief, has nowhere denied the issuance of the cheque in question. Further he has taken a contention that he had handedover the said cheque to the father of the complainant during the year 2002. When the accused has not denied the issuance of the cheque but has taken a contention that the said cheque was issued to somebody else but not to the payee or holder of the instrument, then it is for him to establish that the cheque was issued to a different person but not to the complainant. 14. In the instant case, the accused as DW1 while taking such a vague contention has not produced any corroborative evidence to prove his contention. On the contrary, the very same accused in his cross-examination has stated that as a builder, he develops land for which he raises loans from banks and several individuals. Thus, he has shown that he is a regular borrower not just from the father of the complainant but from banks and other individuals also. Further in the very same cross-examination, when he was confronted with the cheque which was marked at Ex.P4, he has admitted that the said cheque pertains to him and admitted a suggestion as true that the amount mentioned in the cheque is in his handwriting. He also stated that for the alleged nonreturn of the cheque in question by the father of the complainant, he has not taken any legal action against him. He also stated that for the alleged nonreturn of the cheque in question by the father of the complainant, he has not taken any legal action against him. With these admissions and the statements made by DW1 in his crossexamination coupled with evidence of PW1 and DW2 it clearly goes to show that the complainant both by his oral and documentary evidence has clearly established that the cheque in question was issued to him by the accused towards the repayment of the loan amount which is said to have been taken by the accused, from him. Merely because the complainant has not produced his bank passbook or statement, by that itself, it cannot be suspected that there was no such loan transaction. 15. The oral and documentary evidence led by the complainant and the admissions made by the accused in his crossexamination and also the non denying of the submissions of PW1 in his crossexamination would clearly go to establish that the accused had availed a loan of Rs.9,35,000/from the complainant and towards the repayment of the same, he had issued the cheque marked at Ex.P4. Thus, apart from a mere legal presumption under S.139 of N.I. Act, the complainant’s evidence further crystalises the said presumption and proves it to be a fact. 16. Admittedly the said cheque at Ex.P4 came to be dishonoured with the reason of ‘insufficiency of funds’ as could be seen from the banker’s endorsement which is at Ex.P5. Though the legal notice sent to the accused by the complainant as per Ex.P8 came to be returned to the sender as at Ex.P8(a), the postal shara is that the ‘article was not claimed’. Thus when it is not claimed despite the tender made to an addressee, it is deemed that the addressee is served with the said article. Otherwise, he would not have remained not claiming the notice. Simultaneously the complainant has also shown that he has sent the said notice under ‘certificate of posting’ as could be seen from Ex.P7. The said notice sent under certificate of posting is said to have been not returned to the complainant. As such, the notice sent under certificate of posting can also be deemed as having been delivered to the addressee / accused. Thus, even after service of such a notice, the accused has not responded to the same in any manner. The said notice sent under certificate of posting is said to have been not returned to the complainant. As such, the notice sent under certificate of posting can also be deemed as having been delivered to the addressee / accused. Thus, even after service of such a notice, the accused has not responded to the same in any manner. Therefore it clearly goes to show, that the accused had issued a cheque in favour of the complainant towards the repayment of the legally enforceable debt and the said cheque was dishonoured when presented for encashment, with the reason ‘funds insufficient’. The defence taken by the accused that the loan transaction was with the father of the complainant but not with the complainant since has remained not proved, the Courts below have rightly held that the complainant has proved the alleged guilt against the accused which is punishable under S.138 of the N.I. Act. I do not find any illegality or perversity in those Judgments calling for interference in this revision petition. The quantum of sentence ordered also being proportionate to the gravity of the proven guilt, I do not find any ground to interfere with the impugned Judgment of conviction and Order on sentence. Accordingly, I proceed to pass the following: ORDER The revision petition stands dismissed. Registry is directed to transmit the copy of this Order along with Trial Court and Appellate Court records to the Courts below, without delay.