The presumption under Section 118 and 139 of the Negotiable Instruments Act favors the payee in the absence of a probable defense by the drawer of the dishonoured cheque.

JUDGMENT

(Prayer: Criminal Revision Case filed under Section 397 read with Section 401 of Cr.P.C., to set aside the Judgment of conviction and sentence to undergo simple imprisonment for six months and also to pay cheque amount to the complainant passed by the learned III Additional Sessions Judge, Chennai in C.A.No.256 of 2017, dated 09.10.2017 while confirming the conviction and sentence imposed by the learned Metropolitan Magistrate, Fast Track No.III, Saidapet, Chennai - 600 015 in C.C.No. 1885 of 2012, dated 19.08.2017.)

1. This Criminal Revision is filed by the petitioner/accused aggrieved by the judgment of the learned Metropolitan Magistrate [Fast Track Court No.III, Saidapet, Chennai], dated 19.08.2017 in C.C.No.1885 of 2012 in and by which, he was convicted for an offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for a period of six months and to pay the cheque amount as compensation to the complainant, which was confirmed by the judgment of the learned III Additional Sessions Judge, Chennai, dated 09.10.2018 in C.A.No. 256 of 2017 while dismissing the appeal filed by the petitioner herein.

2. When the matter came up for hearing on 09.06.2022, this Court after noticing earlier order dated 07.01.2021, whereby, this Court vacated the order granting suspension of sentence since the petitioner did not comply with the conditional order. Thereafter, when the matter came up for hearing since there was no representation for the petitioner, this Court appointed Ms.C.Valarmathi, learned Legal Aid Counsel to prosecute the above Criminal Revision Case on behalf of the petitioner and posted the matter today for arguments.

3. Accordingly, today, this Court heard the submissions made by the learned Legal Aid Counsel and Mr.P. Suresh, learned counsel appearing on behalf of the respondent.

4. The learned Legal Aid Counsel appearing for the petitioner would submit that this is a case where the complainant alleges that the accused had returned the advance money by means of a cheque and it was dishonoured on its presentation. According to the learned counsel, there is no agreement of sale which was marked by the complainant to show the nature of transaction with the petitioner/accused. It is the specific pleading of the accused that on the strength of the police complaint, the cheque has been extracted from him in the police station. When the complainant has not specifically pleaded the liability and the accused has raised the probable defense that the cheque has been extracted from him in the police station, the accused has rebutted the presumption. The trial Court as well as the Lower Appellate Court, in the absence of any further proof for advancement of Rs.5,00,000/- by the complainant, ought not to have convicted the petitioner.

5. The learned counsel appearing for the petitioner would further submit that the accused had examined himself as DW1 and on his behalf Ex.D1 to Ex.D4 were also marked to rebut the initial presumption raised by the complainant. The trial Court as well as the First Appellate Court without considering the probable defence raised by the petitioner, erroneously convicted him.

6. Per contra, the learned counsel appearing on behalf of the respondent/complainant would submit that this is a case where the accused pleads that the cheque was obtained by him by duress. However, to prove the same, the accused did not take any steps, including issuing notice to the police officials officials for allegedly extraccting the cheque from him. This apart, the petitioner did not even produce any document to show as on what date and time etc., the cheque was extracted from him. In the reply notice as well as in the chief-examination, the accused did not deny the transaction with the complainant. However, in his cross-examination, he has admitted the earlier transaction of sale of one property to the complainant. The complainant also marked Ex.P7, letter of undertaking. The signatu