The central legal point established in the judgment is the requirement to prove the loan transaction and the financial capacity of the complainant beyond reasonable doubt in cases involving dishonoured cheques under Section 138 of the Negotiable Instruments Act.

ORDER

1. The Criminal Revision Petition has been filed seeking to set aside the judgment in C.A.No.236 of 2004, dated 13.10.2008 by modifying the sentence passed in C.C.No.79 of 2001, dated 04.10.2004.

2.The petitioner is the accused in a private complaint filed by the respondent/complainant for the offence punishable under Section 138 of Negotiable Instruments Act in C.C.No.79 of 2001, before the learned Judicial Magistrate No.I, Kuzhithurai.

3. The facts of the case are briefly stated hereunder:-

The case of the prosecution is that on 09.07.2000, the petitioner had borrowed a sum of Rs.2,00,000/- from the respondent to settle his family debt. In discharge of said liability, the petitioner had issued a cheque bearing No.231230, dated 09.12.2000, drawn on Tami Nadu Mercantile Bank, Verkizhampi Branch for a sum of Rs.2,00,000/-. Thereafter, the respondent presented the said cheque for collection through the State Bank of India, Chemmanvilai Branch and the same was dishonoured for the reason 'insufficient funds' and returned with a Memo, dated 02.01.2001.

4. The respondent informed this issue to the petitioner, therefore, the petitioner requested the respondent to present the said cheque after 45 days. Thereafter, the respondent again presented the said cheque for collection on 25.02.2001 in the State Bank of India, Chemmanvilai Branch and the same was again returned for the reason 'insufficient funds' along with memo, dated 02.03.2001. Therefore, the respondent had issued a statutory notice on 12.03.2001 and the same was received by the petitioner on 20.03.2001. On 23.03.2001, the petitioner has given a reply notice with false averments against the respondent. Therefore, the respondent filed a complaint under Section 138 of Negotiable Instruments Act against the petitioner.

5. The trial Court examined the witnesses P.W.I to P.W.3 and eight documents were marked (Ex.P.I to Ex.P.8). On the side of the respondent two witness were examined as D.W.I to D.W.2 and one document was marked as Ex.D.I.

6. On conclusion of trial, the trial Court had found that the petitioner was guilty and sentenced him to under go one year Rigorous Imprisonment and to pay a fine of Rs.4,000/- in default to under go one month Simple Imprisonment. Aggrieved against the same, the petitioner had preferred an appeal in C.A.No.236 of 2004, before the Sessions Court, Kanyakumari Division, Nagercoil.

7. The lower appellate Court by judgment, dated 13.10.2008 partly allowed the appeal by modifying the sentence imposed by the trial Court and directing the petitioner to deposit a sum of Rs.2,00,000/- less the fine amount already paid in the trial Court within three months, in default, the petitioner shall undergo one year Rigorous Imprisonment. As against the same, the present revision has been filed.

8. The contention of the learned counsel for the petitioner is that the respondent is a Driver in the State Transport Corporation and he is drawing meagre salary of Rs.7,500/- and he had no means to lend a sum of Rs.2,00,000/- as loan. Even by April 2000, the respondent got loan for a sum of Rs.47,000/- from his office. In such position, he cannot lend such huge amount of Rs.2,00,000/- as loan. Further, the respondent had admitted that in his bank account, he has not deposited more than Rs.30,000/- at any point of time. The respondent has got no financial capacity and it is highly improbable that the petitioner has got loan for a sum of Rs.2,00,000/- from the respondent.

9. The learned counsel for the petitioner further submitted that it is the fact that except the signature found in Ex.P.I/cheque, the date, month, year and the other entries were not written by the petitioner and they are with different ink, therefore, the body of Ex.P.I/cheque was not filled by the petitioner.

10. In support of his contention, the learned counsel for the petitioner relied upon the judgment of this Court in H. Ubaidulla Vs. S.EIango reported in 2019 (1) MWN (Cr.)DCC 159 (Mad.) The relevant portio