The accused must provide substantial evidence to rebut the presumption under Sections 118 and 139 of the N.I. Act, and proper application of rules of evidence is essential in cheque dishonor cases.

G.Jayachandran, J.

On a complaint by one B.Suruliraj in S.T.C.No.106 of 2015 on the file of the learned Judicial Magistrate, Fast Track Court (Magistrate Level) at Theni, the revision petitioner herein was tried for offence under Section 138 of N.I. Act. The Trial Court acquitted him. On appeal by the complainant, the first appellate Court reversed the finding of acquittal and convicted him. Aggrieved by the order of conviction passed by the first appellate Court, reversing the order of acquittal passed by the Trial Court, the present revision case is filed against the Judgment of the learned Additional District and Sessions Judge, Theni at Periyakulam passed in C.A.No.40 of 2016 dated 27.02.2017.

2. Brief facts leading to this revision case:

(i)The cheque bearing No.042685 dated 11.06.2015 drawn by G.Saravanan at Karur Vysya Bank, Theni favouring B.Suruliraj for Rs 4,00,000/-was presented for collection at Canara Bank, Bodinayakannoor Branch. The cheque was returned with memo stating 'insufficient fund' on 18.06.2015. Suruliraj sent statutory notice to Saravanan through his lawyer intimating the return of cheque for want of fund and calling upon him to pay the cheque amount within 15 days. Saravanan on receipt of the notice, issued reply denying any money transaction with Suruliraj or issuance of the cheque. He also denied any acquaintance with Suruliraj. In the reply notice, the accused has alleged that Suruliraj is acting as a benami to some one else and threatening. He was not present on the alleged date of cheque or borrowing and ready to prove the same.

(ii) On receipt of this reply notice, Suruliraj filed private complaint under Section 138 of N.I. Act and the same was taken on file as S.T.C.No.106 of 2005 by the learned Judicial Magistrate, Fast Track Court (Magistrate Level), Theni.

(iii) The complainant Suruliraj deposed as PW-1. The subject cheque, return memo, legal notice issued by the complainant, acknowledgment card and the reply notice of the accused were marked as Ex.P-1 to Ex.P-5.

(iv) The Trial Court dismissed the complaint holding that:

(a) The accused has denied the handwriting on the cheque. The complainant has not proved the handwriting of the accused;

(b) The complainant has not proved that he is a holder in due course; and

(c) The complainant has failed to examine Sangaranaryananan and Laskhmanan to prove his bona-fide.

(v) Aggrieved by the dismissal, the complainant preferred appeal before the learned Additional District and Sessions Judge, Theni at Periyakulam in C.A.No.40 of 2016. The first appellate Court allowed the appeal and convicted the accused (Saravanan) to undergo 1 year simple imprisonment and pay a fine of Rs. 1000/- in default to undergo 3 months simple imprisonment.

3. The present revision case under consideration is directed against the Judgment of conviction passed by the learned Additional District and Sessions Judge, Theni at Periyakulam in C.A.No.40 of 2016 dated 27.02.2017.

4. Based on the evidence, the Trial Court has held that the accused has discharged his reverse burden. The prima facie burden of lability to pay the cheque amount got discharged by denying the signature and privity of contract with the complainant. Having failed to examine his friends Sangaranaryanan and Lakshmanan to whom the cheque was alleged to have been given by the accused, the Trial Court has acquitted the accused.

5. Whereas, the first appellate Court has drawn presumption under Section 118 of N.I. Act in respect of consideration and under Section 139 of N.I. Act in respect of enforceable debt. The defence of the accused that he did not borrow money from the complainant, he did not issue the cheque to the complainant and the complainant have no wherewithal to lend such a huge sum, were negatived by the first appellate Court.

6. Point for consideration:

"Whether the material placed by the accused is sufficient to hold that he has rebutted the presumption of consideration and enforceable debt?"

7. The first reaso