IMPORTANT POINT
A rebuttable presumption can be proved by way of preponderance of probabilities.

R. Mala, J.—This criminal revision has been preferred against the judgment of conviction and sentence, dated 18.09.2008, in C.A.No.18 of 2008, on the file of I Additional Sessions Court, Salem, whereby the accused was convicted for the offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo three months’ simple imprisonment and to pay a fine of Rs.2,500/- in default in payment to undergo further imprisonment for 15 days, confirming the judgment of conviction and sentence, dated 02.01.2008, in C.C.No. 623 of 2005, on the file of the Judicial Magistrate’s Court No. V, Salem.

2. The gist and essence of the case is as follows:

On 10.01.2005, the revision petitioner/accused borrowed a sum of Rs.50,000/- from the respondent/complainant, for his family expenses. To discharge the said liability, the revision petitioner/accused issued Ex.Pl cheque bearing No.955574, dated 29.07.2005, for Rs.50,000/-. When the cheque was presented for encashment, it was returned as ‘Account closed’ and the same was marked as Ex.P2 return memo. So, the statutory notice has been issued on 19.08.2005 by the respondent/complainant to the revision petitioner/accused, which was marked as Ex.P3 and the same was received by the revision petitioner/accused under Ex.P5 on 24.08.2005. Since the revision petitioner/accused neither repaid the amount nor sent any reply, the respondent/complainant preferred a complaint under Section 138 of Negotiable Instruments Act.

3. The trial Court, after considering the evidence of P.W.1 and D.W.1 and Exs.P1 to P4 and D1, convicted the accused for the offence under Section 138 of Negotiable Instruments Act and sentenced him as stated above, against which, the accused preferred an appeal in C.A.No.18/2008, on the file of I Additional Sessions Court, Salem, wherein the learned I Additional Sessions Judge, after hearing the arguments of both sides counsel, confirmed the conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the petitioner/accused.

4. Challenging the conviction and sentence passed by both the Courts below, the learned counsel for the revision petitioner/accused submitted that P.W.1/ the respondent is stranger to the accused and he has not issued any cheque to him. As per the evidence of P.W.1, P.W.1 has withdrawn the amount of Rs.50,000/ on 10.01.2005 and handed over the same to the revision petitioner on the same day, but he has not filed any document to show that he withdrawn the amount on that day. The accused rebutted the presumption under section 139 of Negotiable Instruments Act, by way of examining D.W.1-Bank Manager and marking Ex.D1-statement of accounts. But that factum has not been considered by both the Courts below. So Ex.P1 cheque has not been issued to the respondent/complainant for discharging existing legal liability. Hence, he prayed for setting aside the conviction and sentence passed against the accused. To substantiate his argument, he relied upon the decision of this Court.

5. Refuting the same, the learned counsel for the respondent submitted that the revision petitioner herein has not disputed his signature in Ex.P1 cheque. Even though he stated that he never issued Ex.P1 cheque to the respondent/ complainant, but he has not stated that how the respondent possessed the same. Even though notice has been received by the accused, no reply was sent by him. So the evidence of D.W.1 and Ex.D1, have not rebutted the presumption under Section 139 of Negotiable Instruments Act. So both the Courts below have considered all the aspects in a proper perspective and came to the correct conclusion. Hence, the judgment of conviction and sentence passed by both the Courts below does not warrant any interference and therefore, he prayed for the dismissal of the revision.

6. Considered the rival submissions made on both sides and the materials available on record.

7. The admitted facts are Ex.P1 cheque was belonging to the revisio