ORDER : J.M.KHAZI, J. These two petitions filed under Section 397 r/w Section 401 of Cr.P.C are by the accused, wherein he has challenged the concurrent findings of the trial Court and Sessions Court convicting him for the offence punishable under Section 138 of Negotiable Instrument Act, (for short N.I.Act) and also the order of the Sessions Court enhancing the punishment. 2. Since these two petitions are arising out of the same judgment and order of the trial Court and common judgment and order passed by the Sessions Court, exercising the appeal jurisdiction and involve common discussion, they are clubbed together and disposed of by common order. 3. For the sake of convenience, parties are referred to by their ranks before the trial Court. 4. Complainant filed a complaint under Section 200 of Cr.P.C, against the accused for the offence punishable under Section 138 of N.I Act, contending that he and accused are known to each other since more than 10 years. On 15.09.2014, accused borrowed hand loan of Rs.3,88,000/- and it was paid by the complainant through cheque No.727282. Similarly, on 08.10.2015, accused borrowed sum of Rs.9,70,000/- and the said payment was made by the complainant through cheque No.063278. In this regard, accused also executed a hand loan agreement dated 08.10.2015. The accused had borrowed the said sums to improve his business and promised to repay the same within two years. 4.1 After expiry of two years, when accused failed to keep up his promise, on repeated request and demand by the complainant, accused issued cheque dated 19.01.2018 for total sum of Rs.13,58,000/- with an assurance that it would be honoured on presentation. However, on 19.01.2018, when complainant presented the cheque for encashment, it was returned dishonoured on the ground "funds insufficient". Immediately, complainant brought this fact to the notice of accused, but he didn't pay the amount due and went on dragging. Therefore, complainant got issued legal notice dated 29.01.2018 to both addresses of the accused. They are duly served on the accused. Instead of paying the amount due, the accused has sent an evasive reply without any alternative complaint is filed. 5. On service of notice, accused appeared through counsel and contested the case by pleading not guilty to the charge levelled against him. 6. In order to prove the allegations, the complainant examined himself as PW-1 and got marked Exs.P1 to 11. 7. 5. On service of notice, accused appeared through counsel and contested the case by pleading not guilty to the charge levelled against him. 6. In order to prove the allegations, the complainant examined himself as PW-1 and got marked Exs.P1 to 11. 7. During the course of the statement under Section 313 of Cr.P.C accused has denied the incriminating evidence by the complainant. 8. Accused has also given evidence as DW-1 and produced Exs.D1 to 9. 9. Vide the impugned judgment and order, the trial Court, convicted the accused and sentenced him to pay fine of Rs.13,63,000/- and out of it ordered for payment of Rs.13,58,000/- by way of compensation. 10. Aggrieved by the same accused approached the Sessions Court in Criminal Appeal No.476/2019. Complainant also challenged the said order in Criminal Appeal No.821/2019 seeking enhancement of the punishment. 11. Vide common judgment and order dated 18.04.2022, the Sessions Court dismissed the appeal filed by the accused and allowed the appeal filed by the complainant and enhanced the fine amount to Rs.18,05,000/- and out of it ordered for payment of compensation a sum of Rs.18,00,000/- to the complainant. 12. Aggrieved by dismissal of his appeal and allowing the appeal of the complainant by enhancing the fine amount, accused is before this Court contending that the Courts below have erred in convicting the accused ignoring the fact that the very amount said to have been paid by the complainant could be at no stretch of imagination excepted as a loan transaction. The Courts below ought to have accepted the defence of the accused. The complainant has claimed that accused has executed a loan agreement, the same is not produced. Since the accused has denied issuance of the cheque, the burden is on the complainant to prove the legality as held in Narayana Menon vs State of Kerala ( Narayan Menon ) , [ 2006 (6) SCC 39 ] However, the complainant has failed to discharge the said burden. 12.1 The Courts below have wrongly held that since the signature in the cheque is admitted, burden is on the accused to prove his case. Ignoring the circumstances in which the cheque came to be issued, the Sessions Court has also erred in enhancing the fine without there being any special circumstances. 12.1 The Courts below have wrongly held that since the signature in the cheque is admitted, burden is on the accused to prove his case. Ignoring the circumstances in which the cheque came to be issued, the Sessions Court has also erred in enhancing the fine without there being any special circumstances. Viewed from any angle, both judgments and orders are not sustainable and pray to allow the revision petitions and set aside the same. 13. In support of his arguments, learned counsel for the accused has relied upon the following decisions; (i) Basalingappa vs Mudibasappa ( Basalingappa ), Crl.A.No.636/2019, dated 09.04.2019. (ii) Shiva Murthy vs Amruthraj ( Shiva Murthy ), ILR 2008 KAR 4629 . (iii) M/s.Hill Range Power Project Developers and others vs M/s. Acciona Wind Energy Private Ltd., ( Hill Range Power ), Crl.P.No.6072/2014, dated 24.02.2015. (iv) The Bidar Urban Co-operative Bank Ltd., Hyderabad road, Bidar vs Mr.Girish s/o late Gunderao Kulkarni ( Girish Kulkarni ), Cl.A.No.200057/2016, dated 17.12.2020. (v) Sri Muniraja D vs Sri Anil Kumar ( Muniraja ), Crl.P.No.7324/2022 dated 25.08.2022. 14. On the other hand, learned counsel for complainant supported the impugned judgments and orders. He would submit that since the complainant and accused are known to each other, on the request of accused, complainant advanced hand loan in a total sum of Rs.13,58,000/- by way of two cheques and the payments were credited to the account of accused. He had requested for two years time to repay the same. After expiry of two years, when accused failed to repay the amount due, on the repeated request and demand, he issued the subject cheque for Rs.13,58,000/-. However, when presented it was dishonoured for want of sufficient funds. Therefore, after issuing legal notice and on the failure of accused to comply with the same, complainant filed the complaint in question. 14.1 He would further submit that the accused has not only failed to repay the amount due under the cheque, but also taken an untenable defence and failed to establish the same. Therefore, appreciating the evidence placed on record, the trial Court has rightly convicted the accused. Since the sentence imposed was not proportionate to the gravity of the offence, complainant also challenge the said judgment and order so far as punishment is concerned. Therefore, appreciating the evidence placed on record, the trial Court has rightly convicted the accused. Since the sentence imposed was not proportionate to the gravity of the offence, complainant also challenge the said judgment and order so far as punishment is concerned. The Sessions Court on re-appreciation of the entire oral and documentary evidence has not only confirmed the conviction, but also enhanced the punishment and there is no perversity calling for interference by this Court and pray to dismiss the petitions also. 15. In support of arguments, learned Council for complainant has relied upon the following decisions: (i) Somashekar vs C.V Raju ( Somashekar ), Crl.RP.No.72/2024 dated 25.01.2024. (ii) Thomas Mani s/o Thomas vs G Shankar ( Thomas Mani ), Crl.RP.No.851/2016 dated 24.02.2025.. 16. Heard arguments and perused the record. 17. Having regard to the fact that the subject cheque at Ex.P1 is drawn on the account of the accused and it bears his signature, presumption under Section 139 of N.I.Act comes to play, placing the initial burden on the accused to rebut the presumption that the cheque was not issued towards repayment of any legally recoverable debt or liability, but on the other hand, in what circumstances it reached the hands of the complainant. Only after accused rebut the presumption, the burden would shift on the complainant to prove his case. 18. It is the definite case of the complainant that he has advanced hand loan of Rs.3,88,000/- and Rs.9,70,000/- and the said amount was paid through cheques and the amount is credited to the account of the accused. Accused admit that he has received a total sum of Rs.13,58,000/- from the complainant and the said sum has reached his account through two payments. However, he claims that he is a labour contractor and complainant is in construction business and he has supplied labours and these two payments are towards the money due to him for supplying the labours and not hand loan as claimed by the complainant. He has also made an allegation that complainant was in the habit of visiting his house and accused used to keep signed blank cheques for the purpose of making payments in emergent situations and complainant has committed theft of one such cheque and filing the amount for a sum of Rs.13,50,000/- he has presented it for encashment and on its dishonour has chosen to file the present complaint. 19. 19. In order to prove that he is engaged in labour contracting work and complainant is doing construction business which requires supply of labours, accused has not produced relevant documents. He has produced income tax returns for the assessment year 2015–16 and 2016–17 at Exs.D7 and 9. In Ex.D9 under schedule five, it is stated that he has received gross labour charges in the sum of Rs.19,69,385/-. However, the accused has not produced any documents to prove that he was doing labour contracting business. Moreover, this figure Rs.19,69,385/- cannot be accepted as including the amount received from the complainant, which according to him is a hand loan unless the accused establish that he is a labour contractor and complainant is a civil contractor engaged in construction business. 20. The accused has also produced two bills dated 10.09.2014 for Rs.3,90,950/- and 05.06.2015 for Rs.9,80,155/- for having supplied labour and claimed that they bear the signature of complainant. He has also claimed that original of these bills are with the complainant. It appears since they are photocopies, they are not marked. Even if original of these bills were given to the complainant and his signature was taken on photo copy, then the photo copy of the bills with the original signature of complainant would be available with the accused and he could have produced the same instead of producing its Xerox copy. The accused could have maintained account regarding the supply of labour. He could have produced the account books. In the absence of the same, the accused has failed to prove that complainant is civil contractor engaged in construction work and the accused is a labour contractor and he has supplied labour to the complainant and the payments made to him by the complainant was towards the same. 21. If at all accused has supplied the labour and complainant has paid the amount due for the same, the next question will be why complainant would commit theft of the subject cheque. The accused has not come up with any dispute between complainant and him prompting the complainant to commit theft of Ex.P1. During his cross examination, the accused stated that he came to know that the said theft was committed during November– December-2017, Ex.P1 is dated 19.01.2018. The accused has not come up with any dispute between complainant and him prompting the complainant to commit theft of Ex.P1. During his cross examination, the accused stated that he came to know that the said theft was committed during November– December-2017, Ex.P1 is dated 19.01.2018. The complainant has claimed that after receipt of legal notice when he went to lodge complaint with the police, they refused to receive it and on the other hand, advised him to defend the criminal case. Admittedly, the accused has not chosen to produce document to show that he tried to lodge a complaint with the concerned police. He has also not tried to approach the higher police officers and file the complaint. Accused has also not filed any private complaint against the complainant, alleging theft of Ex.P1. 22. If at all accused has come to know about the theft of Ex.P1 during November–December 2017, the best thing he could have done was to apprise the bank about the theft of the cheque and instruct it to stop payment. This would have prevented his prosecution or at least supported his defence that it is a case of theft of cheque. In the absence of the same, the accused has failed to rebut the presumption and therefore the burden has not shifted on the complainant to prove his case. Nevertheless, through the oral and documentary evidence, the complaint has proved his case. 23. So far as decision in Narayana Menon is concerned, it is not applicable to the case on hand, as in that case on facts it was held that complainant has failed to prove the allegations against accused and dismissed the complaint by setting aside the orders passed by the High Court and acquitted the accused. 24. Now coming to the petition filed by the accused challenging the enhancement of punishment. According to the complainant, the total hand loan given to the accused is Rs.13,58,000/-. The trial Court has imposed to fine of Rs.13,63,000/- i.e it has only added a sum of Rs.5,000/- to the amount advanced to the accused and ordered the said amount to be paid to the Government to defray the trial expenses. The transaction is of the year 2014 and 2015. The trial Court has imposed to fine of Rs.13,63,000/- i.e it has only added a sum of Rs.5,000/- to the amount advanced to the accused and ordered the said amount to be paid to the Government to defray the trial expenses. The transaction is of the year 2014 and 2015. According to the complainant, since the accused had promised to repay the said amount within two years, he waited for two years and on his failure, demanded and secured the cheque at Ex.P1 dated 19.01.2018. Accordingly, he filed the complaint in 2018 and it came to be disposed off on 02.02.2019, by the time the case came to be disposed of already five years had elapsed. 25. If the complainant had used it for his business purpose, he would have earned handsome returns. At least had he kept the said amount in fixed deposit, he could have earned some interest. Added to that the complainant had also spent for litigation. The trial Court has not given any reasons as to why he has ordered payment of only the amount which was advanced by the complainant to the accused by way of hand loan. The trial Court has not exercised its discretion in judicious manner. Therefore, rightly the Sessions Court has allowed the appeal filed by the complainant and increased the fine to Rs.18,05,000/- which is quite reasonable. This Court finds no perversity in the reasons assigned by the Sessions Court in enhancing the fine. 26. In the result both petitions filed by the accused fail and accordingly the following: ORDER i) Petitions filed by the accused under Section 397 r/w 401 Cr.P.C are dismissed. ii) The impugned judgment and order dated 18.04.2022 in Crl.A.Nos.476/2019 and 821/2019, on the file of LXIII Addl.City Civil and Sessions Judge, (CCH-64) Bengaluru, is confirmed. iii) The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this judgment forthwith.