Presumption under Sections 118 and 139 of the Negotiable Instruments Act, 1881 is crucial in cases of dishonored cheques.

JUDGMENT

(Prayer: Criminal Revision is filed under Section 397 r/w 401 of the Code of Criminal Procedure, to call for the records pertaining to the issue of the order dated 13.04.2017 in Criminal Appeal No.137 of 2015 by the Hon’ble III Additional District and Sessions Judge, Coimbatore as well the order passed in S.T.C.No.365 of 2011 Judicial Magistrate II, Pollachi and revise the same and thus acquit the petitioners.)

1. The petitioner was convicted by the learned Judicial Magistrate No.II, Pollachi (trial Court), by judgment, dated 25.05.2015 in S.T.C.No.365 of 2011 and sentenced to undergo Simple Imprisonment for a period of one year and to pay Rs.10,00,000/- (Rupees ten lakhs only) as compensation to the 2nd respondent within six months, in default, to undergo Simple Imprisonment for a period of six months for offence under Section 138 of the Negotiable Instruments Act, 1881. As against the judgment of the trial Court, an appeal was preferred by the petitioner before the learned III Additional District and Sessions Judge, Coimbatore (lower appellate Court) in C.A.No.137 of 2015. The lower appellate Court, by judgment, dated 13.04.2017 dismissed the appeal and modified the sentence of the trial Court setting aside the default sentence to be undergone by the petitioner, against which, the present Criminal Revision Case has been filed by the petitioner.

2. The gist of the case is that the petitioners and the 2nd respondent are known to each other for quite some years. On 22.03.2010, the 1st petitioner had borrowed a sum of Rs.10,00,000/- from the 2nd respondent by executing promissory note. In repayment of the loan amount, on 29.10.2010, the 1st petitioner issued a cheque bearing No.811393 drawn on Lakshmi Vilas Bank, Pollachi Branch to the 2nd respondent. When the cheque was presented for collection on 09.12.2010, the same was dishonoured with an endorsement ‘Payment Stopped by Drawer’ on 18.12.2010. A statutory notice, dated 03.01.2011 was issued demanding the payment of cheque amount given by the 2nd respondent and the same was received by the petitioners on 04.01.2011. The 1st petitioner sent a reply on 18.01.2011 stating that the cheque was missed while travelling in a bus, which was taken by the 2nd respondent’s son Kannan and handed over the same to the 2nd respondent, who filled up cheque and misused the same. Since the reply was with a concocted story, the complaint was filed by the 2nd respondent before the trial Court in C.C.No.365 of 2011.

3. During trial, on the side of the complainant/2nd respondent, four witnesses were examined and seven documents were marked. On the side of the accused/petitioners, one witness was examined and two documents were marked. The trial Court after analysing the evidence and materials, convicted the petitioner. The lower appellate Court independently reappraised the evidence and materials, confirmed the conviction of the trial Court modifying the default sentence alone.

4. The learned counsel for the petitioner submitted that in this case, PW1 is the 2nd respondent/complainant and other witnesses PW2 to PW4 are his close friends. The petitioners never borrowed any amount from the 2nd respondent. When the 1st petitioner was travelling in a bus on 06.12.2010 along with the 2nd respondent’s son Kannan, he missed the cheque book, which was taken by the said Kannan and handed over the same to his father/2nd respondent. The 2nd respondent filled up the cheque and presented before the bank and filed the complaint before the trial Court. He further submitted that not only the 2nd respondent lodged the complaint against the petitioners, but also his friends viz., Durairaj, A.M.Devaraj and Leelakrishnan foisted false cases against the petitioners. One of the case in C.C.No.39 of 2011 filed by A.M.Devaraj was dismissed as withdrawn on 21.07.2014, on the file of the Judicial Magistrate Court No.II, Udumelpet. He further submitted that the 2nd respondent had no source of income to lend such huge amou