IMPORTANT POINT
Account Book can be produced by accused to rebut presumption.

R. Mala, J.— The Criminal R.C. is filed against the judgment dated 13.8.2007 in Cri.A.No.524 of 2006 on the file of the Additional Sessions Court-cum-Fast Track Court No.2, Coimbatore, confirming the judgment dated 21.11.2006 in C.C.No.202 of 2004 on the file of the Judicial Magistrate No.2, Pollachi, whereby the revision petitioner/accused was convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo one year simple imprisonment and to pay a fine of Rs.5,000, in. default, to undergo simple imprisonment for three months.

2. The respondent as a complainant, filed a complaint under Section 138 of the Negotiable Instruments Act; the revision petitioner/accused borrowed Rs.3,00,000 on 20.11.2002 and executed a Promissory Note and for discharging the same, he paid interest @ Rs.30,000 in cash and. issued cheque for Rs.3,00,000 on 12.12.2003, i.e. Ex.P2, which was presented for encashment and that has been returned as evidenced by Ex.P3; statutory notice had been issued under Ex.P4, which has been received by the petitioner/accused under Ex.P5; after receipt of the notice, the revision petitioner/accused neither sent a reply nor repaid the amount to the respondent/complainant, and hence, the respondent preferred the complaint.

3. The trial Court after following the procedures and since the revision petitioner/accused pleaded not guilty, examined PWs 1 and 2 and marked Exs.P1 to P6 and found the revision petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him as stated above.

4. Challenging the said judgment of the trial Court, the revision petitioner/accused preferred Crl.A.No.524 of 2006, and the learned appellate Judge confirmed the conviction and sentence passed by the trial Court, against which, the present Cri.R.C. has been filed by the revision petitioner/accused.

5. Challenging the conviction and sentence passed ‘by both the Courts below, learned counsel appearing for the revision petitioner/accused submitted that the Bank of Madura merged with ICICI Bank in 2000, whereas’ Ex.P2 cheque was alleged to have been issued on 12.12.2003. In the year 2000, the revision petitioner/accused borrowed by loan an amount of Rs.75,000, which has already been discharged, and the same is accepted by PW1 complainant while he was in the box and so, Ex.P2 cheque is not supported by any consideration, and it has been fabricated for the purpose of the case, and hence, he prayed for allowing the Cri.R.C. and to set aside the conviction and sentence passed by the Courts below.

6. Repudiating the said contentions; learned counsel for the respondent/complainant submitted that it is true that there was previous transaction between the revision petitioner and the respondent and while PW1 complainant was in the witness box, he fairly conceded that he lent Rs.75,000 which was discharged. He further submitted that as soon as the cheque has been dishonoured, the statutory notice under Ex.P4 was issued and that has been received by the revision petitioner/accused under Ex.P5 acknowledgement card and he neither gave any reply nor he got into the box rebutting the presumption under Section 139 of the Negotiable Instruments Act and so, both the Courts below have considered this aspect in proper perspective and found the revision petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act. He further submitted that the conviction and sentence passed by the Courts below do not suffer from any irregularity or illegality and he prayed for dismissal of the Cri.R.C.

7. Considering the rival submissions made by both sides, it is seen that the issuance of cheque Ex.P2 is accepted by the revision petitioner/accused and his defence is that he issued the same only when he borrowed Rs.75,000 from the respondent/complainant in 2000. The presumption under Sections 118 and 139 of the Negotiable Instruments Act, is rebuttable,