JUDGMENT :

Prayer: Criminal Revision Petition is filed under Section 397 r/w 401 of Criminal Procedure Code, to call for the records in C.A.No.74 of 2012, dated 20.01.2014, on the file of the V - Additional Sessions, Judge, Chennai, and confirming the Order/Judgment passed in C.C.No.1308 of 2006, dated 29.03.2012 on the file of the Learned II Metropolitan Magistrate, Egmore, Chennai, and set aside the same by allowing this Criminal Revision Petition.

1. This Criminal Revision is filed by the petitioner by name Rajalakshmi, aggrieved by the conviction for the offence under Section 138 of the Negotiable Instruments Act 1881, by the Judgment dated 29.03.2012 of the Learned II-Metropolitan Magistrate, Egmore in C.C.No.1308 of 2012 and imposing a sentence of six months Simple Imprisonment and to pay a fine of Rs.5,000/- and in default to undergo two mouths Simple Imprisonment and the Judgment of the Learned V- Additional Sessions Judge, Chennai in Crl.A.No.74 of 2012, dated 20.01.2014, thereby, dismissing the appeal and confirming the conviction and sentence passed by the Trial Court.

2. This is a case arising by way of a private complaint filed under Section 200 of the Negotiable Instruments Act. The case of the complainant is that the accused befriended the complainant and obtained the loan on different dates in all totaling a sum of Rs.5 Lakhs and issued a letter of undertaking on 27.07.2004 confirming the borrowal and issued a cheque dated 25.08.2004 for a sum of Rs.5 Lakhs, which was presented to the Indian Bank, Harbour Branch on 28.08.2004, the same was returned with an endorsement “Funds insufficient”. The complainant issued a statutory notice on 26.09.2004, and the accused received the said notice on 28.08.2004, but, he did not make any payment within the statutory time or thereafter, hence, the complaint.

3. The case was taken on file in C.C.No.1308 of 2006 and the sworn statement was recorded on 15.06.2006 and having taken cognizance of the case for the offence under Section 138 of the Negotiable Instruments Act, issued summons to the accused. Upon being furnished the copies under Section 207 of Cr.P.C., the petitioner/accused denied the charge and stood trial.

4. On behalf of the complainant, the complainant examined himself as PW.1. The undertaking letter dated 25.07.2004, was marked as Ex.P-1 and the cheque dated 25.08.2004, was marked as Ex.P-2. The return memo was marked as Ex.P-3. The copy of the legal notice was marked as Ex.P-4 and the acknowledgment card was marked as Ex.P-5.

5. By way of cross-examination, the salary statement of the complainant was marked as Ex.D-1, the earlier notice was marked as Ex.D-2 and the reply notice as Ex.D-3 on behalf of the accused. Upon being questioned about the evidence on record and the incriminating circumstances under Section 313 of Cr.P.C., the accused denied the same. Thereafter, no evidence was let in on behalf of the accused.

6. The Trial Court proceeded to hear the learned counsel appearing for the complainant and the learned counsel for the accused and by Judgment dated 29.03.2012, found that the complainant has proved the presentation of cheque & return and issuance of statutory notice. The Trial Court found that even though in the cross-examination on behalf of the accused, Ex’s.D-1 to D-3 were marked, that by itself would not amount to rebutting the case of the prosecution. Once the signature in the cheque is admitted, by virtue of Section 118 r/w Section 139 of the Negotiable Instruments Act, the presumption has arisen in favour of the complainant and therefore, the contention raised on behalf of the accused does not command acceptance. The live-in relationship between the accused and the complainant cannot by itself explain the custody of the cheque - Ex.P-2 with the complainant. Therefore, the Trial Court came to the conclusion that the presumption remains unrebutted and convicted the petitioner/accused and sentenced as aforementioned.

7. Aggrieved by the said Judgment, t