The judgment establishes the importance of a valid notice under Section 138 of the Negotiable Instruments Act, the statutory presumption under Section 139, and the impact of discrepancy in the cheque number on the complaint.

JUDGMENT :

SUNDER MOHAN, J.

Prayer: Criminal Revision has been filed under Sections 397 and 401 Crl. P.C. to set aside the conviction imposed in the judgment dated 16.06.2017 made in C.A. No. 48 of 2016 on the file of the learned First Additional District and Sessions Court, Tiruppur confirming the judgment dated 13.04.2016 made in C.C. No. 1 of 2014 on the file of the learned Judicial Magistrate, Fast Track Court, Tiruppur.

1. This revision arises against the Judgment of the learned First Additional District and Sessions Judge, Tiruppur, passed in C.A. No. 48/2016 on 16.06.2017.

2. The petitioners faced prosecution for the offence under Section 138 of the Negotiable Instruments Act in C.C. No. 1/2014 on the file of the learned Judicial Magistrate, Fast Track Court, Tiruppur along with the second petitioner's mother. The prosecution case was that the second petitioner had borrowed a sum of Rs. 9,00,000/- (Rupees Nine Lakhs only) from the respondent/complainant on 28.06.2012 to meet his family and business expenses. Towards discharge of the said debt, the second petitioner issued a post dated cheque of the first petitioner's Firm drawn on Allahabad Bank, Tiruppur in a sum of Rs. 9,00,000/- (Rupees Nine Lakhs only). The second petitioner also executed a promisory note for the said sum of Rs. 9,00,000/- (Rupees Nine Lakhs only). The respondent/complainant presented the cheque for collection on 30.01.2013 and upon the same having returned for the reason “Opening Balance Funds Insufficient” issued statutory notice and filed a complaint under Section 138 of the Negotiable Instruments Act.

3. Before the trial Court, the respondent examined two witnesses and marked seven exhibits. The petitioners did not examine any witnesses or mark exhibits on their side.

4. The trial Court rendered a finding of conviction and sentenced the first petitioner to pay a fine of Rs. 1000/- and directed the second petitioner to pay the said fine on behalf of the first petitioner and in default the second petitioner to suffer one month S.I. and sentenced the second petitioner to undergo one year S.I and to pay a fine of Rs. 1,000/- (Rupees One Thousand only), in default to suffer one month S.I. Against the same, the petitioners moved an Appeal in C.A. No. 48/2016, which came to be dismissed by the learned I Additional District and Sessions Judge, Tiruppur.

5. Heard, Mr. N. Manokaran, learned counsel for the Petitioners and Mr. K.R. Arun Shabari, learned counsel for the Respondent.

6. The learned counsel for the Petitioners submitted that the judgment of the Courts, below convicting the Petitioners, has to be set aside. The learned counsel submitted that the statutory notice was not sent to the petitioners and hence there was no cause of action for filing the impugned complaint. In the Notice, the cheque number was shown as 155175. In the complaint, the cheque number was shown as 055175. The said discrepancy is fatal to the respondent’s case, since the petitioner was not put on notice, as to which cheque was dishonoured. The case of the respondent is that the petitioners had executed a pro-note and also issued a cheque for the alleged loan received by the Petitioners. The Respondent did not examine all the witnesses to the Pro-note to establish the liability. He had examined only PW-2 who is none other than the sister of the respondent. The Court has to draw adverse inference against the respondent since he had not examined the other independent witnesses to the Pro-note. The Respondent had not established his financial capacity to lend a huge sum of Rs. 9,00,000/- (Rupees Nine Lakhs only) to the Petitioner. In the statutory notice, the Respondent had mentioned that only the second Petitioner approached the Respondent for loan. In the complaint, the Respondent mentioned that both the second Petitioner and his mother one Rasammal who was originally arrayed as A3 approached the complainant for loan. This contradiction is a material one, and would affect the case of t