The main legal point established in the judgment is the requirement for the accused to rebut the legal presumption raised under Section 139 of the Negotiable Instruments Act and the impact of the amendment to Section 138 on sentencing.

1. Since the Petitioner in both the above Criminal Revision Cases are same and the Respondent in Crl.R.C.No.264 of 2008 is the husband of the Respondent in C.C. No.236 of 2008 and the issues that arise for consideration in both the above Criminal Revision Cases are one and the same, both the Criminal Revision Cases are being disposed of by this common order.

2. The Petitioner in the above Criminal Revision Cases is the accused in C.C. Nos.190 and 191 of 2001 on the file of the learned Judicial Magistrate No.II, Erode, wherein, he faced trial for the offence under Section 138 of the Negotiable Instruments Act. After trial, the Trial Court convicted the Petitioner in each case for the said offence and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs.5,000/-, with a default clause. Being aggrieved by that, the Petitioner preferred Appeals in C.A. Nos.186 and 187 of 2003 before the Additional District Sessions Judge cum Fast Track Court No. I, Erode. The Lower Appellate Court, on an independent consideration of the evidence, confirmed the conviction and sentence imposed on the Petitioner. Being aggrieved by that, the Petitioner is before this Court.

3. The brief facts which are necessary for the disposal of Crl.R.C.No.236 of 2008 are set out below:

(i) It is the case of the Respondent that the accused/Petitioner herein is a close friend of her and her family and is doing textile business at Kumarapalayam. On 12.01.2001, the accused approached Y.S. Mathivanan, the husband of the Respondent, for obtaining loan of R.s.15 lakhs and since the Complainant was ready and having only Rs.5 lakhs, the same was lent to the Petitioner and to repay the said loan amount, the Petitioner issued a cheque dated 13.03.2001 for a sum of Rs.5 lakhs. The accused paid advance interest. When Ex.P-2-cheque was presented for encashment, the same was returned with an endorsement ‘insufficient funds’. The Respondent sent a legal notice for which the Petitioner sent a reply rebutting the averments contained in the notice. Thereafter, the Complaint was filed through the Respondent and the same was taken on file.

(ii) To prove the case of the Complainant in C.C. No.190 of 2001, two witnesses were examined. P.W.1 is the husband of the Respondent and P.W.2 is the Bank Manager and Exs.P-1 to P-10 have been marked. On the side of the accused, no oral evidence was adduced, but Exs.D-1 to D-5 have been marked. Since the Petitioner had admitted his signature in Ex.P-2-cheque, the Trial Court, rightly raised a legal presumption available under Section 139 of the Negotiable Instruments Act and further holding that the legal presumption raised under Section 139 of the Act has not been rebutted by the accused and also on the basis of the other evidence available on record, came to the conclusion that the Complainant has proved his case and the offence under Section 138 of the Act has been established, convicted the Petitioner under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months.

4. The brief facts which are necessary for the disposal of Crl.R.C.No.264 of 2008 are set out below:

(i) It is the case of the Respondent that the accused/Petitioner herein is a close friend of him and is doing textile business at Kumarapalayam. On 12.01.2001, the accused approached the Complainant/Respondent, for obtaining loan of Rs.10 lakhs and also borrowed the said sum from the Complainant and to repay the said loan amount, the Petitioner issued a cheque dated 13.03.2001 for a sum of Rs.10 lakhs. The accused paid advance interest. When Ex.P-1 cheque was presented for encashment, the same was returned with an endorsement ‘insufficient funds’. The Respondent sent a legal notice for which the Petitioner sent a reply rebutting the averments contained in the notice. Thereafter, the Complaint was filed through