The accused must rebut the presumption of discharge of liability under Section 138 of the Negotiable Instruments Act by providing evidence of repayment.

1. The Criminal Appeals arise out of the judgment of acquittal dated 07.10.2011 in C.C.Nos.6788 and 6787 of 2002 on the file of the learned VIII Metropolitan Magistrate, George Town, Chennai.

2. The facts of the case are as follows:

Crl.A.No.801 of 2011 (C.C.No.6788 of 2002):

(i) The appellant herein as a complainant preferred a private complaint stating that the respondent/accused had borrowed loan from the complainant and to discharge the said liability, he had given Ex.P1 cheque dated 09.09.2002 for Rs.6,00,000/-. When the appellant presented the cheque for encashment on 09.09.2002, it was returned as “insufficient funds” on 11.09.2002 vide Ex.P2 return memo. Even though the appellant issued Ex.P3 statutory notice to the respondent to his correct address on 14.09.2002, the same was returned undelivered on 30.09.2002 with an endorsement “party out of station not claimed” as per Ex.P4/return cover. Therefore, the appellant preferred a private complaint against the respondent/accused under Section 138 of the Negotiable Instruments Act.

Crl.A.No.802 of 2011 (C.C.No.6787 of 2002):

(ii) The appellant herein as a complainant preferred a private complaint stating that the respondent/accused had borrowed loan from the complainant and to discharge the said liability, he had given Ex.P1 cheque dated 04.09.2002 for Rs.50,000/-. When the appellant presented the cheque for encashment on 04.09.2002, it was returned as “insufficient funds” on 05.09.2002 vide Ex.P2 return memo. Even though the appellant issued Ex.P3 statutory notice to the respondent to his correct address on 14.09.2002, the same was returned undelivered on 30.09.2002 with an endorsement “party out of station not claimed” as per Ex.P4/return cover. Therefore, the appellant preferred a private complaint against the respondent/accused under Section 138 of the Negotiable Instruments Act.

3. The trial Court has taken cognizance of an offence, after following the procedure and recording sworn statement. Since the accused pleaded not guilty, the trial Court examined P.W.1 and marked Exs.P1 to P4 on the side of the complainant. No oral and documentary evidence were let in on the side of the respondent. The trial Court after considering the oral and documentary evidence, acquitted the accused for the offence under Section 138 of the Negotiable Instruments Act by holding that the complainant has not proved that the cheque was issued by the accused for discharging legally subsisting liability.

4. Challenging the judgment of acquittal passed by the trial Court, the party-in-person/appellant/complainant has submitted that once issuance of cheque was admitted by the accused, the complainant is entitled to invoke presumption under Sections 118 and 139 of the Negotiable Instruments Act that the cheque was issued for discharging legally subsisting liability and the presumption is rebuttable one. But the respondent/accused has not rebutted the presumption by preponderance of probabilities. Whereas the trial Court has wrongly held that burden is shifted upon the complainant to prove that the cheque is issued for discharging legally subsisting liability. It is further submitted that the trial Court has held that the complainant has not obtained licence for money lending business, which is against law and the income tax returns shows that the debt of the accused was not mentioned in the liability column. But it will not come under the liability column. Since it is an asset, it was mentioned in the assets column. The trial Court without considering the above aspects, has erroneously acquitted the respondent/accused. To substantiate his arguments, the party-in-person relied upon the following decisions:

(i) Crl.A.No.1020 of 2010, dated 07.05.2010 (Rangappa v. Sri Mohan);

(ii) Crl.A.Nos.807 of 2005 and 556 of 2006, dated 29.04.2011 (S.Swarna v. S.Mukanchand Bothra);

(iii) S.A.Nos.280 to 285 of 1998, dated 30.06.2011 (Kuppayammal v. A.Sitheswaran);

5. Resisting the same, the learned counsel f