Presumption of debt under the NI Act and the burden of proof on the accused to rebut the presumption.

JUDGMENT

(Prayer: Criminal Revision Case filed under Section 397 & 401 Cr.P.C, to set aside the judgment passed in C.A.No.8 of 2017 on the file of the Principal District and Sessions Judge at Vellore dated 01.09.2018 and the judgment passed in C.C.No.139 of 2014 by the Magistrate, FTC at Vellore dated 27.12.2016 by allowing this revision.)

1. This criminal revision is filed aggrieved by the judgment of the Judicial Magistrate, Fast Track Court, Vellore, dated 27.12.2016, in C.C.No.139 of 2014 in and by which, the petitioner is convicted for the offences under Sections 138 and 142 NI Act and was sentenced to undergo simple imprisonment for a period of six months and to pay the cheque amount of Rs.2,00,000/- as compensation to the complainant with simple interest at the rate of 6% per annum from the date of complaint, in default, to undergo three months simple imprisonment and to pay a sum of Rs.5,000/- towards litigation charges and the judgment of the Principal District and Sessions Judge, Vellore, dated 01.09.2018, in C.A.No.8 of 2017, by which, the appeal was dismissed and the conviction and sentence imposed by the trial Court was confirmed.

2. Heard Mrs.Girija, legal aid counsel for the petitioner and Mr.M.Senthilkumar learned counsel for the respondent.

3. Learned counsel appearing for the petitioner submitted that it is the pleading of the accused that the signed cheques kept for the purpose of his business was stolen and misused for the instant transaction. The said defence was not at all considered by both the Courts below in proper perspective. This apart, the signature in Exs.P1 promissory note and Ex.P2 cheques are visibly different. Therefore, the said factor itself would disprove the case of the complainant that the accused borrowed the sum with the complainant and for that purpose executed the promissory note and thereafter, issued the said cheque. She would further submitted that even in respect of service of notice, the acknowledgment card has not been filed and even, if the acknowledgment card is filed, signature can be verified and compared.

4. The learned counsel would further content that complainant in this case had not properly and clearly pleaded the relationship between the complainant and the accused. In the complaint, it is stated that the accused is a known person. Only in the evidence, it is improved that the accused is closely known to the complainant. Therefore, when the accused has categorically pleaded that he had not even seen the complainant before and they are seeing first time in the Court and DW1 had got into the box and deposed the said fact, the trial Court and the lower appellate Court should have acquitted the accused.

5. Per contra, the learned counsel appearing for the respondent submitted that the petitioner has not appeared before this Court and the conditional order imposed by this Court was not complied with. Even after the earlier order, the accused not even appeared before this Court. He would further submit that the trial Court and the lower appellate Court have categorically appraised the evidence and on finding that the accused has failed to rebut the presumption, convicted the accused and therefore, there is no ground to upturn the said findings by the trial Court and the lower appellate Court.

6. I have considered the rival submissions on either side. Perused the material records in the present case.

7. It is seen that the defence of the accused is that he has kept the signed cheques for his business purpose and the complainant along with Manogaran have misused the said cheques and they have foisted a false case against him. While such a defence has been taken, in the cross examination of DW1, he had pleaded contrarily to his defence that he did not know Manogaran. The trial Court therefore took into account the said material contradictions in the evidence of DW1 and rejected the entire defence. Therefore, in view of the said findings of the trial Court in rejecting the defence and