IMPORTANT POINT
Once issuance of cheque has been admitted by accused complainant is entitled to presumption under Section 139 of N.I. Act.

R. Mala, J.—This revision has been preferred against the judgment of conviction and sentence, dated 6.8.2008, in C.A.No.69 of 2008 on the file of the First Additional Sessions Judge, Erode, whereby the accused found guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and imposed a fine of Rs.5,000 in default to undergo three months simple imprisonment, confirming the judgment of conviction and sentence, dated 25.1.2008, in C.C.No.173 of 2005, on the file of the District Munsif Court-cum-Judicial Magistrate’s Court, Kodumudi.

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

The revision petitioner/accused herein borrowed a sum of Rs.50,000 from the respondent/complainant on 7.5.2005. To discharge the liability, the revision petitioner/accused issued a cheque bearing No.671379 drawn on Bank of Madura Limited, Erode, dated 7.8.2005 for Rs.50,000, which was marked as Ex.P1. When the cheque was presented for encashment in Bank, it was returned as ‘Insufficient funds’ as per return memo dated 16.8.2005 along with debit advice dated 19.8.2005, which was marked as Ex.P2. Therefore, the respondent issued a statutory notice to the revision petitioner on 10.9.2005, which was marked as Ex.P3 and an acknowledgement card was marked as Ex.P4. On 5.10.2005, the revision petitioner issued a reply notice to the respondent under Ex.P5 stating that the allegations in the statutory notice are false. Since the revision petitioner has not repaid that amount, the respondent/complainant preferred a complaint under Section 138 of Negotiable Instruments Act.

3. The trial Court after considering the evidence of PW1, DW1 to DW3 and Exs. P1 to P5, Exs.D1 to D4, found the revision petitioner/accused guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and imposed a fine of Rs.5,000 in default to undergo three months simple imprisonment, against which, the accused preferred an appeal in C.A.No.69 of 2008, on the file of the First Additional Sessions Judge, Erode. The learned First Additional Sessions Judge, after considering the arguments of both the counsel and materials available on record, confirming the judgment of conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the accused.

4. In spite of several adjournments, neither the petitioner nor his counsel present. When the matter was posted ‘for orders’ on 14.6.2011, no one appeared for the petitioner and put forth the arguments. Since it is a revision case, this Court empowers to peruse the materials available on record and decide the matter on merits.

5. On perusal of the evidence of PW1/the respondent and DW1/the revision petitioner, issuance of cheque and signature in the cheque under Ex.P1 are admitted. But, DW1 in his chief-examination, he stated that blank cheques have been issued by him as a security to one Rathinasamy, when he borrowed an amount of Rs.21,000. He further stated that when he ploughed the lands of Rathinasamy with his tractor, a sum of Rs.45,000 was due from Rathinasamy to him. When he demanded Rs.45,000, Rathinasamy has not repaid the same and misused the blank cheques with the help of the respondent/complainant, he come forward with the statutory notice under Ex.P3 and preferred a complaint against the petitioner/accused. So as per the evidence of DW1, it has clearly proved that Ex.P1 cheque was issued by him. Once the issuance of cheque has been admitted by DW1/the revision petitioner herein, the respondent/complainant is entitled to presumption under Section 139 of Negotiable Instruments Act. It is true that it is a rebuttable presumption. So it is the duty of the revision petitioner/accused to rebut the presumption. The revision petitioner/accused was himself examined as DW1 and the Bank Managers were examined as DW2 and D.W.3. But, the evidence of DW1 is not sufficien