The liability of a party to a contract can be enforced even before fulfilling their part of the promise, and the presumption under Section 139 of the Negotiable Instruments Act places the burden of proof on the accused to prove the contrary.

1. The arguments advanced by Mr.K.Kalyanasundaram, learned counsel for the petitioner were heard. The grounds of revision and the other materials placed before the Court in the form of typed-set of papers, which includes the copies of judgments of the Courts below, were also perused.

2. The petitioner herein was prosecuted by the first respondent herein in S.T.C.No.411 of 2008 on the file of the Judicial Magistrate No.I, Coimbatore for an alleged offence under Sections 138 of the Negotiable Instruments Act based on the dishonour of two cheques issued by the petitioner in favour of G.Jayanthi, the first respondent for a sum of Rs.1,00,000/- and Rs.1,29,500/- respectively. The first one was dated 10.07.2007 and the second one was dated 23.07.2007. When both the cheques were presented for collection, the first cheque was returned unpaid with the endorsement that there was "no sufficient fund" in the account and the second cheque was returned with the endorsement "account closed". The above said dishonoured cheques have been produced and marked as Exs.P3 and P5 respectively. Return Memo has been produced and marked as Ex.P4.

3. Subsequently, within the period prescribed in the Negotiable Instruments Act, a notice intimating the dishonour of the cheques and calling upon the petitioner to make payment of the cheque amount was issued under Ex.P7. The service of the said notice is evidenced by Ex.P8 acknowledgment. Even after the receipt of the said statutory notice, the petitioner failed and neglected either to issue a reply or to make payment as demanded in the notice. Consequently, a complaint was filed by the first respondent through her power attorney holder Soundararajan under Section 200 Cr.P.C.

4. The said Soundararajan, who figured as the sole witness, was examined as PW1 and Exs.P1 to P8 were marked on the side of the complainant. No documentary or oral evidence was adduced on the side of the petitioner (accused). The learned Judicial Magistrate considered the evidence and held the petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act. Accordingly, he was convicted with one year rigorous imprisonment and a fine of Rs.5000/-with a default sentence to undergo simple imprisonment for one month in default of payment of fine.

5. The said judgment of conviction and the order of sentence were challenged by the petitioner unsuccessfully before the learned Additional District Judge, FTC No.II, Coimbatore in Crl.A.No.109 of 2010. After re-appraising the evidence and considering the points raised by both sides, the learned appellate Judge concurred with the trial Magistrate and dismissed the appeal confirming the conviction and sentence. Now the petitioner has come before this Court with the present criminal revision case questioning the propriety and legality of the judgment of the appellate Court confirming the conviction and sentence.

6. Challenging the concurrent findings of the courts below regarding the guilt of the accused and also the sentence, the petitioner has raised the following contentions:-

i) The cheques were not issued for a legally enforceable liability

ii) The complaint was not preferred by the payee. On the other hand, it was preferred by the Power of Attorney holder of the payee. The payee did not enter the witness box and it was the Power of Attorney holder who entered the witness box and deposed against the petitioner.

7. So far as the first contention of the petitioner is concerned, it is the case of the petitioner that there was a contract between the petitioner and the first respondent, under which the first respondent had undertaken to supply yarns for which purpose the petitioner had issued the cheques in question; that after the cheques were received, the first respondent failed to supply yarns and that hence the cheques in question could not be construed to be the cheques issued in discharge of a legally enforceable debt or a legally enforceable liabi