The legal presumption of consideration passing with the issuance of a cheque and the burden of proof on the holder to establish due course.

This Criminal Revision Case is directed against the order dated 22.02.2016 passed by the learned Principal District and Sessions Judge, Ariyalur, in Crl.A.No.1 of 2015, confirming the conviction and sentence passed by the learned Judicial Magistrate, Jayankondam, in S.T.C.No.1125 of 2014, dated 17.12.2014.

2. The brief facts of the case are as follows:-

The revision petitioner, who is the accused in S.T.C.No.1125 of 2014, has borrowed a sum of Rs.50,00,000/- from the complainant and he issued a cheque for Rs.15,00,000/- vide cheque bearing No.334428, dated 21.01.2009. The said cheque was presented by the respondent/complainant for collection in his bank and the same was returned as 'insufficient funds'. Immediately, the respondent had issued a statutory lawyer notice to the revision petitioner/accused and even though said notice was received by the accused, he has not paid the money to the respondent/complainant. Hence, the complaint was lodged by the respondent before the learned Judicial Magistrate, Jayankondam. The learned Judicial Magistrate, Jayankondam, after considering the evidence and documents adduced on both sides, finally found the accused guilty under Section 138 of the Negotiable Instruments Act and convicted and sentenced him to undergo three months simple imprisonment and to pay fine of Rs.1,00,000/- as fine, in default, to undergo 15 days simple imprisonment. The fine amount was ordered to be given as compensation to the complainant and further, the accused was directed to pay Rs.10,000/- on 17.12.2014 and the remaining amount of Rs.90,000/- within two months. As against the said conviction and sentence, the accused/revision petitioner herein had preferred an appeal in Crl.A.No.1 of 2015 before the Sessions Court, and the learned Principal District and Sessions Judge, Ariyalur, after perusing the entire records, confirmed the conviction and sentence passed by the learned Judicial Magistrate, Jayankondam. As against the said judgments of the Courts below, the present criminal revision case is preferred by the revision petitioner/Accused.

3. The learned counsel appearing for the petitioner would contend that both the Courts below, have not analysed the oral and documentary evidence let in on the side of the accused in proper perspective. It is further contended that the lower Court has failed to consider the fact that the petitioner disputed the financial capacity of the respondent to lend a huge sum of Rs.15,00,000/- and the same was admitted by the respondent himself as P.W.1. Further, even though the respondent claimed that he received the amount of Rs.15,00,000/- from four persons, he neither mentioned the names of the four persons nor examined them as witnesses to prove his case. It is also submitted by the learned counsel for the petitioner that considering the admission made by the respondent, who was examined as P.W.1, about his inability to pay Rs.15,00,000/-, the trial Court ought to have dismissed the complainant. In view of the above facts and circumstances, the order of the trial Court has to be set aside and the criminal revision case has to be allowed.

4. Even though notice was served on the respondent, he has not chosen to appear either in person or through counsel.

5. In the grounds of revision, the petitioner has admitted about the issuance of cheque by him. The only allegation is that inability of the respondent/complainant to lend Rs.15,00,000/- and even though the respondent/complainant claimed that he received Rs.15,00,000/- from four persons, he has not mentioned their name and he has not examined them as witnesses on the side of the complainant. Apart from the above two grounds, no other grounds were raised on the side of the prosecution. In the above facts and circumstances of the case, the revision petitioner has not denied about the issuance of cheque.

6. In this case, it is useful to extract Section 118 of the Negotiable Instruments Act which reads as follows:-

"118. Presumptions as t