JUDGMENT 1. Revision Petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of LXV Additional City Civil and Sessions Judge (CCH-66), Bengaluru in Crl.A.No.1106/2015, dtd. 26/8/2016, confirming the judgment of Trial Court on the file of XII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.2586/2014, dtd. 1/8/2015 preferred this Revision Petition. 2. Parties to the Revision Petition are referred with their ranks as assigned in the Trial Court for the sake of convenience. 3. Heard the arguments of both sides. 4. After hearing both the sides and on perusal of Trial Court Records with judgment of both the Courts below the following points arise for consideration: 1) Whether the impugned judgment under revision petition which confirmed the judgment of the Trial Court is perverse capricious and legally not sustainable and call for any interference by this Court? 5. On careful perusal of the oral an documentary evidence placed on record, it would go to show that complainant and accused are friends and known to each other. In the month of June 2015 accused approached the complainant for hand loan of Rs.10, 00, 000.00 to meet her urgent domestic necessities. The complainant has given hand loan of Rs.10, 00, 000.00 and accused has agreed to repay the same within six months by mobilizing the funds. The accused in order to discharge the said debt has issued cheque drawn on Axis Bank Ltd. from the account maintained by her dtd. 23/3/2013 for Rs.10, 00, 000.00 Ex.P.1. The complainant presented the said cheque through her banker ING Vysa Bank Ltd. The said cheque was dishonoured with the endorsement "Account Closed" vide Bank endorsement Ex.P.2. Complainant issued demand notice dtd. 17/4/2013 through RPAD Ex.P.3 and the receipt is produced at Ex.P.4. The demand notice is duly served to accused vide acknowledgement card Ex.P.5. The accused has replied to the said notice Ex.P.6, complainant also relied on promissory note under Ex.P.9 and consideration receipt Ex.P.10. 6. If the above referred sequence with reference to the date pleaded in the complaint are perused and appreciated with the oral evidence of PW.1, then it would go to show that the cheque issued by accused Ex.P.1 on its presentation for collection was dishonoured vide bank endorsement "Account Closed" . The demand notice issued by the complainant is duly served to the accused and the accused has replied the same Ex.P.6. The demand notice issued by the complainant is duly served to the accused and the accused has replied the same Ex.P.6. Accused has not paid the amount covered under the cheque Ex.P.1 as called for in the demand notice Ex.P.3. Therefore, the complainant has filed the complaint on 27/5/2013. The complainant has complied necessary legal requirements in terms of Sec. 138 (a) to (c) of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as "N.I.Act"). Therefore, statutory presumption available in terms of Ss. 118 and 139 of N.I.Act willl have to be drawn. 7. In this context of the matter, it is useful to refer the judgment of Hon'blel Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945 , wherein it has been observed and held that once the issuance and signature on cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debt or liability. Plea by accused that cheque was given by view of security and same has been misused by complainant is not tenable. 8. It also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:- " Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Sec. 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary." In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him is admitted or proved, then statutory presumption in terms of Ss. 118 and 139 of N.I. Act will have to be drawn. 9. 118 and 139 of N.I. Act will have to be drawn. 9. It is now up to the accused to place rebuttal evidence to displace the statutory presumption available in favour of the complainant. In the present case accused apart from relying on the material placed on record by the complainant also chosen to lead her own evidence as DW.1 and documents as per D.1 to D.4. 10. In regard to proving the rebuttal evidence being on the accused it would profitable to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that: "Presumption under Sec. 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Sec. 139 imposed an evidentiary burden and not a presumptive burden". 11. The Hon'ble Apex Court in the latest decision in Rajesh Jain Vs. Ajay Singh reported in 2023 SCC online 1275,, wherein it has been held that burden of placing rebuttal evidence to displace the statutory presumption available in favour of complainant is on accused. In view of the principles enunciated in this judgment, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into witness box to probabilise his defence. 12. It is the specific defence of accused that complainant has stolen the cheque and ATM card and secondly complainant has no source of income to give loan of Rs.10, 00, 000.00 to the accused. It is not necessary for the accused to step into witness box to probabilise his defence. 12. It is the specific defence of accused that complainant has stolen the cheque and ATM card and secondly complainant has no source of income to give loan of Rs.10, 00, 000.00 to the accused. In order to substantiate the said contention accused has given the evidence as DW.1 and she has deposed to the effect that complainant being friend was in visiting terms to her house and she came to know about the cheque Ex.P.1 only when she received the demand notice issued by the complainant. She immediately filed the complaint before Kadugodana halli Police Station against the complainant. The police authority have called complainant and accused to the Police Station and enquired in to the matter, complainant has agreed to return the cheque, credit card and debit card to accused. However, thereafter she has not returned the same and filed this false complaint. 13. In support of such oral evidence, reliance is placed on the complaint filed by accused Ex.D.1. Endorsement given by police Ex.D.2. The treatment taken by the accused Ex.D.4 and the cheque ordered to be issued to the accused Ex.D.3. The documents at Ex.D.3 and D.4 has nothing to do with the transaction in question, it is only the evidence of DW.1 and Exs.D.1 and 2 will have to be appreciated in the light of the first defence referred above taken by the accused. 14. The complaint averments and the evidence of PW.1 would go to show that loan transaction in para 3 of the complaint took place in the month of June 2012. Accused has agreed to give back the amount within the period of six months. However, the accused has not paid the amount within the period of six months. Thereafter, issued post dated cheque bearing No.149299 dtd. 23/3/2013 drawn on Axis Bank, Koramangala Branch, where the accused maintained the account. Complainant has produced the demand promissory note Ex.P.9 and consideration receipt Ex.P.10 executed by the accused. It is pertinent to note that during the course of cross- examination of PW.1 it has been suggested that for security complainant got executed on demand promissory note and consideration receipt. 23/3/2013 drawn on Axis Bank, Koramangala Branch, where the accused maintained the account. Complainant has produced the demand promissory note Ex.P.9 and consideration receipt Ex.P.10 executed by the accused. It is pertinent to note that during the course of cross- examination of PW.1 it has been suggested that for security complainant got executed on demand promissory note and consideration receipt. The said suggestion itself, apart from the evidence of PW.1 and the aforementioned documents would go to show that complainant has advanced loan of Rs.10, 00, 000.00 to the accused. Otherwise there was no any occasion for the accused to execute promissory note Ex.P.9 and consideration receipt Ex.P.10 dtd. 6/6/2012. 15. Undisputedly accused has replied to the demand notice of complainant on 22/4/2013 Ex.P.6. In the said reply notice at para 5 accused alleges that complainant in her presence has stolen cheque book and ATM card, when she enquired about the same, complainant has not returned the same. Other than this specific allegation accused has not given any particulars regarding the date on which complainant had came to her house and stolen the cheque, ATM card and debit card. Apart from this though the accused has taken loan on 6/6/2012, the cheque in question for lawful discharge of debt was issued by the accused on 23/3/2013. In between the period of taking loan from complainant vide Exs.P.9 and 10 till the date of issuance of cheque Ex.P.1 on 23/3/2013 what action accused has taken against the complainant for having stolen cheque in her presence has not been brought on record by the accused. It is only for the first time after the receipt of demand notice Ex.P.3 dtd. 17/4/2013, accused has come up with the theory in the reply Ex.P.6 that complainant has stolen the cheque book and the ATM card in her presence. How can complainant commit theft of cheque and the ATM card that too in the presence of accused in her house is unimaginable. Apart from giving any particulars about the incident of theft, no any evidence has been produced by the accused regarding the theft incident. Therefore, it is difficult to believe the contention of accused that complainant has committed theft of cheque book from her house and out of the said cheque book Ex.P.1 was misused by the complainant. 16. Apart from giving any particulars about the incident of theft, no any evidence has been produced by the accused regarding the theft incident. Therefore, it is difficult to believe the contention of accused that complainant has committed theft of cheque book from her house and out of the said cheque book Ex.P.1 was misused by the complainant. 16. Accused after the theft incident immediately thereafter has not given intimation to the bank, nor filed any police complaint though the theft incident said to have been taken place in her presence itself. Accused has also not offered any evidence on record as to what happened about the remaining cheque leaves in the cheque book, ATM Card and debit card said to have been stolen by the complainant. The accused claimed that complainant was called to the Police Station and enquired about the complaint filed by her Ex.D.1 and complainant admitted to return the cheque book, ATM card and debit card, however, she has not returned the same. The said complaint Ex.D.1 came to be filed after receipt of demand notice. Therefore, concoction of facts to suit her purpose by filing the complaint Ex.D.1 cannot be ruled out. The endorsement given by Police Ex.D.2 is only with respect to the complaint filed by accused. However, there is no any evidence on record to show that complainant has admitted having committed theft of cheque book, ATM card and debit card in her presence and she has agreed to returned the same. Accused has alleged in Ex.D.1 complaint that cheque, ATM card were misplaced in her house itself and expressed doubt on complainant, the said allegations made in Ex.D.1 is quite contrary to the aforementioned defence taken by the accused. Therefore, the evidence of accused in the form of DW.2 and the documents at Exs.D.1 to D.2 to prove the first defence of complainant having stolen the cheque, ATM card and debit card cannot be relied. 17. Accused also has chosen to deny her signature on the cheque Ex.P.1. During the cross-examination of PW.1, the mere denial of signature of accused is not enough and it is for the accused to prove that the signature appearing on Ex.P.1 does not belongs to her. 17. Accused also has chosen to deny her signature on the cheque Ex.P.1. During the cross-examination of PW.1, the mere denial of signature of accused is not enough and it is for the accused to prove that the signature appearing on Ex.P.1 does not belongs to her. Otherwise in terms of Sec. 118 of N.I.Act presumption will have to be drawn regarding consideration, as to date, as to time of acceptance, as to time of transfer, as to order of endorsement, as to stamps, that holder is a holder in due course. In the present case the theory propounded by the accused regarding the theft of cheque, ATM card and debit card in her presence from the house has not been probabilised by her evidence as DW.1 and documents at Exs.D.1 and D.2. Accused has not taken any steps to seek expert opinion to substantiate her contention that the signature appearing on Ex.P.1 is not that of her. The Trial Court on the basis of admitted signature of accused Ex.P.12(a) and Ex.P.13(a) with that of signature of accused appearing on Ex.P.1 has compared the same in exercising the powers in terms of Sec. 73 of Evidence Act as recorded finding that the signature of accused appearing on the Ex.P.1 is that of accused. The Trial Court has recorded finding in para 14 of its judgment on comparison of the signature. Otherwise also, if accused is sure with the signature appearing on Ex.P.1 is not of her signature then she would have certainly taken necessary steps to seek expert opinion. Otherwise in the absence of any evidence on record, presumption in terms of Sec. 118 of N.I.Act will have to be drawn. 18. Secondly, accused has taken defence that complainant has no source of income to advance loan of Rs.10, 00, 000.00. The complainant has issued demand notice dtd. 17/4/2013 Ex.P.3 calling upon accused to pay the amount covered under the cheque Ex.P.1. Accused has replied to the said notice dtd. 22/4/2013 Ex.P.6. However, the accused has not chosen to question the source of income of complainant and has not made any basic foundation while giving reply to the notice. It is only for the first time during the course of cross- examination of PW.1 the source of income of complainant has been questioned. 22/4/2013 Ex.P.6. However, the accused has not chosen to question the source of income of complainant and has not made any basic foundation while giving reply to the notice. It is only for the first time during the course of cross- examination of PW.1 the source of income of complainant has been questioned. Complainant in her evidence during the course of cross-examination has stated as to how she has memorized the fund for giving hand loan to the accused. Complainant has also produced demand promissory note Ex.P.9 and consideration receipt Ex.P.10. The suggestions have been made during the course of cross-examination of PW.1 about the complainant having taken Exs.P.9 and 10 as a security for the loan advanced by her. The capacity of complainant in mobilizing the fund in terms of complaint averments has not been questioned by the accused. Therefore in terms of Sec. 118(a) of N.I.Act the presumption of passing consideration under Ex.P.1 will have to be accepted. 19. The accused by way of material elicited in the cross-examination of PW.1 and out of the evidence of DW.1 and documents at Ex.D.1 and D.2 has failed to probabilise her defence so as to displace the statutory presumption available in favour of complainant. Therefore, when the accused has failed to probabilise her defence then in that event of the matter the statutory presumption continues to operate in favour of complainant in terms of Ss. 118 and 139 of N.I.Act. The Courts below have rightly appreciated the oral and documentary evidence placed on record and justified in negating the rebuttal evidence placed on record by the accused and in holding that the complainant has proved that accused has issued the cheque in question Ex.P.1 for lawful discharge of debt and thus committed an offence under Sec. 138 of N.I.Act. The said finding recorded by both the Courts below are based on the material evidence on record and same does not call for any interference by this Court. 20. Now coming to the question of sentence, the accused was sentenced to pay a fine of Rs.13, 00, 000.00 and in default of payment of fine shall undergo simple imprisonment for six months. Out of the said fine amount Rs.12, 95, 000.00 was ordered to be paid to the complainant as compensation and remaining Rs.5, 000.00 was ordered to be paid as prosecution expenses. Out of the said fine amount Rs.12, 95, 000.00 was ordered to be paid to the complainant as compensation and remaining Rs.5, 000.00 was ordered to be paid as prosecution expenses. Looking to the period to which accused has withheld the amount due to the complainant, no any fault can be found with the Trial Court in imposing the fine amount with default sentence. Therefore, on the question of imposition of sentence also, the same does not call for any interference of this Court. Consequently, proceed to pass the following: ORDER Revision Petition filed by Revision Petitioner is hereby dismissed as devoid of merits. Registry to send back the records to Trial Court with a copy of this order.