ORDER :

This revision petition filed against the judgment passed by the learned 1st Additional Sessions Judge of Erode in C.A.No.37 of 2014 dated 23.03.2015 confirming the judgment passed by the Judicial Magistrate No.III of Erode, in S.T.C.No.414 of 2008 dated 25.04.2014.

2. The respondent/complainant filed S.T.CNo.414 of 2008 before the learned Judicial Magistrate No.III, Erode for offence under Section 138 of the Negotiable Instruments Act. After trial, the trial Magistrate has laid the conviction and sentence as stated supra. On appeal in Crl.A.No.37/2014 first additional sessions Judge dismissed the appeal and hence the revision.

3. Heard the learned counsel for the petitioner and the respondents.

4. The learned counsel for the revision petitioner would contend that A3 is the revision petitioner herein. The sum and substance of the contention of the revision petitioner is that the cheque was not issued to the private complainant herein and it was issued to one M/s.Yaham Process, partnership firm represented by its Managing Partner, Avinashilingam and hence, after the receipt of the legal notice, he had issued reply notice, specifically requested to furnish a copy of the impugned cheque but the impugned cheque has not been furnished to the accused and on the date of issuance of the alleged amount, the private complainant do not own sufficient funds to lead a sum of Rs.4 lakhs and the MICR cheque was in use from 2005 while Ex.P1 cheque is issued for prior to 2005 and also stated that he is only a sleeping partner.

5. Per contra, the learned counsel for the respondent/private complainant would submit that as per Ex.P8 re-joinder dated 29.07.2008, the copy of the impugned cheque was duly served on the accused herein and the signature in the cheque was not disputed and hence, he is entitled for the presumption under Section 139 of the Negotiable Instruments Act. Furthermore, he also drawn my attention to the finding rendered by both the Courts below that the defence has not probablised the suggestive case to rebut the statutory presumption.

6. The learned counsel for the revision petitioner relied upon a decisions of the Hon'ble Supreme Court reported in 2014 (1) MLW Crl.DCC 24 (SC) and 2014 (2) MLW Crl. DCC 129 (SC) and further, contended that the dishonoured cheque was marked as Ex.P1 through D.W.1 Manager of the Karur Vysa Bank Limited. At no point of time, the private complainant owned such an extent of Rs.4 lakhs. Even for the entire financial year, the total transaction comes about only Rs.8 lakh. Further most of the accounts is under minus account namely, Over Draft facility and hence, the private complainant has no means to pay such amount. Hence, between the private complainant and the accused, there is no legally enforceable debt.

7. The case of the private complainant in brief is that the accused has received loan transaction of Rs.4 lakhs given to A2 and A3 on behalf of A1 firm. In turn A3 signed and issued Ex.P1 cheque to the complainant in the presence of A2 and on behalf of A1 firm. So is the evidence as P.W.1. From records revealed that Ex.P1 cheque was dishonoured. Ex.P2 Memo with an endorsement 'accounts closed'. Legal notice was issued. The complainant issued Ex.P8 notice with enclosing xerox copy Ex.P1 cheque, no reply was issued by the revision petitioner/accused.

8. The accused come forward with the defense that the complaint never had any source of income to lend R.4,00,000/- to the accused as alleged. Further, contended that accused never borrowed any money as loan from the complainant as alleged and never issued any cheque to the complainant as collateral security for the said loan transaction. Further contended that the complainant is an unknown person and stranger to them and prays to dismiss the complaint.

9. The learned counsel for the revision petitioner further contended that Ex.D1 Bank Account (opening form), which shows that the respondent/complainant is residing at the rental building and his wife is h