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2009(2) Bankmann 415 (Mad.)
MADRAS HIGH COURT
P.R. Shiva Kumar, J.
Yeshpal — Petitioner
versus
Vijay Kumar — Respondent
Criminal R. No. 1668 of 2005
Decided on 3.3.2008
Counsel for the Parties:
For the Petitioner:C. Deivasigamani, Advocate.
For the Respondent: Ahmed Associates.
IMPORTANT POINT
Presumption under Section 139 of N.I. Act is only a rebuttable one and the degree of proof for the rebuttal of such presumption is not comparable with that of the burden of the prosectuion to prove the charge. In such cases, it shall be sufficient for the accused to prove by preponderance of probabilities the alleged debt or liability could not be true.
Headnote:Negotiable Instruments Act, 1881 – Section 138 and 139 – Dishonour of cheque – Conviction by courts below – Revision – Complainant claimed to have lent a sum of Rs. 1,85,000 on 29.3.2000 for which cheque in question issued on 19.7.2000 – Defence plea was that cheque had been misused – Presumption under Section 139 of the Act that cheque was issued for discharge in whole or part of a debt or liability – Presumption was rebuttable and degree of proof for rebuttal of such presumption was preponderance of probabilities – Complainant had failed to produce and prove as to where from he had arranged amount which the advanced as loan – He did not get any document as security for alleged loan – It was enough material to rebut the presumption – Complainant could not be said to have proved existence of legally enforceable debt or other liability – Conviction was liable to be set-aside. (Paras 11 to 15)
P.R. Shiva Kumar, J. – As against the concurrent judgment of the Courts below holding the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as the Act), the present revision has been preferred.
2. The respondent herein has preferred a private complaint under Section 200 Cr.P.C. on the file of the learned Judicial Magistrate No.2, Coimbatore alleging that the petitioner herein/accused committed an offence punishable under Section 138 of the Act. According to the contents of the complaint, the petitioner/accused borrowed a sum of Rs.1.85,000 from the respondent/complainant on 29.3.2000 promising to repay the same within three months from the said date of borrowal and thereafter on 19.7.2000 he issued a cheque in favour of the respondent/complainant for the above said sum draw on City Union Bank, Ram Nagar Coimbatore. The cheque was returned by the bank with the endorsement “funds insufficient” when the same was presented for encashment. Subsequent to the receipt of banker’s memo informing the respondent/complainant of the said fact, a statutory notice under Section 138 of the Act was issued to the petitioner/accused. Even after receiving the said notice, the petitioner/accused failed either to send a reply or to make payment and hence the respondent/complainant was constrained to prefer the complaint for prosecuting and punishing the petitioner/accused for the said offence.
3. The petitioner/accused who entered appearance on receipt of process, denied the averments found in the complaint and pleaded not guilty. In the trial that followed, two witnesses were examined as PW1 and PW2 and nine documents were marked as EP1 to Ex. P9 or the side of the complainant. After the accused was examined under Section 313 Cr.P.C. regarding the incriminating materials appearing in the evidence of the complaint, he entered upon his defence and examined himself as DW1. Three documents were marked as Ex. Dl to Ex. D3 on the side of the accused. The learned Judicial Magistrate No. II, Coimbatore considered the evidence in the light of the arguments advanced on either side and upon such a consideration, came to the conclusion that the petitioner/accused was guilty of the offence punishable under Section 138 of the Act and sentenced him to undergo simple imprisonment for a period of one and half years, and also directed him to pay a compensation of Rs.90,000 to the respondent/complainant with a further direction to undergo simple imprisonment for a period of three months in case of default to pay such compensation. The appeal preferred there from by the petitioner/accused in C.A. No.352 of 2003 was heard and disposed of by the learned Additional District Judge (Fast Track Court No. II, Coimbatore) by a judgment dated 6.12.2005. The learned appellate Judge concurred with the judgment of the trial Court in all respects and dismissed the above said appeal. Hence the present revision has been filed by the petitioner/accused before this Court.
4. This Court heard the submissions made by the learned counsel for the petitioner and the learned counsel for the respondent and perused the materials available on record.
5. The petitioner herein was prosecuted before the learned Magistrate No. II, Coimbatore for an offence punishable under Section 138 of the Act and at the conclusion of trial he was convicted and sentenced as indicated supra. Having unsuccessfully challenged the judgment of conviction pronounced and sentence imposed by the trial Court before the learned Additional District Judge (Fast Track Court No. II, Coimbatore) in C.A. No.352 of 2003, the petitioner/accused has come forward with this present revision.
6. The learned counsel for the petitioner submitted that the specific case of the respondent/complainant was that he lent a sum of Rs.1,85,000 on 29.3.2000 for which he got Ex. P1 cheque on 19.7.2000 and that the respondent/complainant who figured as PW1 made an
