The presumption under Section 139 of the Negotiable Instruments Act is a rebuttable presumption, and the burden is on the accused to prove that the cheque was issued as security.

1. This revision has been preferred against the judgment of conviction and sentence, dated 03.01.2008, in C.A.No.260 of 2007, on the file of the Principal District and Sessions Judge, Coimbatore, whereby the accused found guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced her to undergo one year simple imprisonment, confirming the judgment of conviction and sentence, dated 11.06.2007, in S.T.C.No.428 of 2006, on the file of the Judicial Magistrate's Court No.7, Coimbatore.

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

The revision petitioner/accused herein borrowed a sum of Rs.2,50,000/- from the respondent/complainant on 13.09.2005. After repeated demands made by the respondent, to discharge the liability, the revision petitioner/accused issued a cheque bearing No.797594, dated 14.10.2005 for Rs.2,00,000/-, which was marked as Ex.P1. When the cheque was presented for encashment in Bank, it was returned as 'Funds insufficient' as per return memo under Ex.P2 and debit advice under Ex.P3. Therefore, the respondent issued a statutory notice to the revision petitioner on 02.11.2005, which was marked as Ex.P4 and the certificate of posting was marked as Ex.P5. The Registered post with acknowledgment card was returned as 'unclaimed' and the same was marked as Ex.P6. The revision petitioner issued a reply notice to the respondent under Ex.P7 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 P.W.1 and D.W.1 and Exs.P1 to P7, found the revision petitioner/accused guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced her to undergo one year simple imprisonment, against which, she preferred an appeal in C.A.No.260 of 2007, on the file of the Principal District and Sessions Court, Coimbatore. The learned Principal District and 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, both the counsel were not ready. When the matter was posted 'for orders' today, no argument was advanced. 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 P.W.1/the respondent and D.W.1/the revision petitioner, issuance of cheque and the signature in the cheque under Ex.P1 are admitted. But, D.W.1 in her chief-examination, she stated that a blank cheque has been issued by her as a security to one Sukumar for the amount of Rs.30,000/-, when she borrowed. Except Rs.5,000/-, the entire amount has been paid by her. While considering the evidence of D.W.1 in her cross-examination, it is clearly proved that her evidence is contrary to her reply notice, which was sent to the respondent. Since she accepted the issuance of cheque and signature in the cheque, the respondent/complainant is having presumption under Section 139 of Negotiable Instruments Act and the cheque has been issued only for discharging of existing legal liability. It is true that the presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption. So the revision petitioner/accused is having right to rebut the presumption under Section 139 of Negotiable Instruments Act, preponderance of probabilities. So the burden is on her to prove that cheque was issued as a security to one Sukumar. The said Sukumar was also not examined before the Court. In her cross-examination, she fairly conceded that she has not issued any notice to Sukumar for return of the cheque as well as the promissory note. She further stated that she has not preferred any complain