The main legal point established in the judgment is the presumption under Section 139 of the N.I. Act and the burden of proof on the defendant to prove the non-existence of consideration.

G. Jayachandran, J.

The revision petitioner is the accused in S.T.C.No.115 of 2009 on the file of the learned Second Additional District Munsif, Nagercoil. The cheque dated 20.02.2008 drawn at Dena Bank, Nagercoil Branch issued by her in favour of Nagarajan for Rs. 2,80,000/-, on presentation for collection, returned unpaid. Nagarajan issued statutory notice dated 26.02.2008 calling upon the revision petitioner to pay the cheque amount within 15 days from the date of receipt of the notice. The revision petitioner, though received the notice on 28.02.2008, neither replied nor paid the cheque amount.

2. Nagarajan filed complaint before the Court, which was taken up on file. The complainant examined himself as PW-1. The cheque, memo, debit advice challan, statutory notice, postal receipt and postal acknowledgment were marked as Ex.P-1 to Ex.P-6.

3. The case of the complainant is that he lent Rs. 2,80,000/- to the accused on 20.12.2007. She promised to repay the loan within 2 months and gave post-dated cheque (Ex.P-1). He presented the cheque for collection on 21.02.2018 through his bank. The bank returned the cheque with intimation that funds insufficient. The memo of cheque return issued by the accused bank is Ex.P-2. The debit advice challan issued by his bank is Ex.P-3. The accused was called upon to make the payment of Rs. 2,80,000/- within 15 days through notice dated 26.02.2008. The accused received the notice, but not paid the money and thereby committed offence under Section 138 of N.I. Act.

4. The defence version is that the cheque was not issued by the accused. The cheque was stolen from the accused and misused by the complainant. There is no enforceable debt in respect of the cheque. The complainant has not proved his source for lending Rs. 2,80,000/-. The complainant has not shown the said money transaction in his income tax returns.

5. The Trial Court negatived the defence version, accepted the case of the complainant and convicted the accused under Section 138 of N.I. Act and sentenced him to undergo 6 months simple imprisonment and to pay a fine of Rs. 5,000/- in default to undergo 3 months simple imprisonment.

6. Aggrieved by the Trial Court judgment, the revision petitioner filed appeal in C.A. No. 34 of 2011 before the learned Sessions Judge, Mahila Fast Track Court, Nagercoil.

7. In the appeal, it was contented that no prudent man will offer a huge amount without interest. The case of the complainant that he gave Rs. 2,80,000/- to the accused on 20.12.2007 and on the same day she gave cheque for Rs. 2,80,000/- to repay after 2 months without interest is unbelievable. The complainant has no money lending licence. The contradiction in the complainant case regarding the exact date and place of issuing the cheque has not been properly considered by the Trial Court. The Trial Court is erred in believing the complainant that he gave hand loan of Rs. 2,80,000/- based on the post dated cheque even without knowing her repaying capacity and background of her family.

8. The first appellate Court pointing the inconsistency in the defence version and failure to prove the cheque was stolen from her, dismissed her appeal drawing presumption under Section 139 of N.I. Act.

9. The learned counsel appearing for the revision petitioner in this revision filed against the concurrent finding of the Courts below submitted that once the signature in the cheque denied by the accused, the complainant ought to have taken steps to prove the signature in the cheque is that of the accused. By denial of the signature the accused has shifted the burden of proof on the complainant. Hence, presumption under Section 139 of N.I. Act cannot be drawn.

10. Relying upon the Judgment of the Supreme Court rendered in Krishna Janadhhan Bhat v. Dattatraya G. Hedge, (2008) 4 SCC 54, the learned counsel submitted that stepping into witness box by the accused is not imperative to rebut the presumption. The cheque amount being huge, the complainant is bound t