The main legal point established in the judgment is that the defense must raise a credible and sufficient rebuttal to the presumption of liability under Section 138 of the Negotiable Instruments Act in order to avoid conviction.

JUDGMENT

(Prayer: Criminal Revision Case filed under Section 397 r/w 401 of Criminal Procedure Code, to set aside the judgment, dated 16.04.2019 passed in C.A.No.329 of 2018 by the IV Additional Sessions Court at Bhavani, Erode District confirming the judgment, dated 10.10.2018 passed by the learned Judicial Magistrate No.II, Bhavani in S.T.C.No.26 of 2018 (Old S.T.C.No.40 of 2017) and to acquit the petitioner.)

The petitioner has filed this Revision Case aggrieved by the concurrent finding of the guilt for an offence under Section 138 of the Negotiable Instruments Act, 1881.

2. Heard Mr.P.Sesubalan Raja, learned Counsel for the petitioner and Mr.S.P.Yuvaraj, learned Counsel for the respondent.

3. According to the learned Counsel for the petitioner, it is the simple case of the respondent/complainant that the petitioner/accused borrowed a sum of Rs.2,50,000/- by way of hand loan by cash on 29.07.2014 and issued the cheque in repayment thereof and upon the cheque being dishonoured, the complaint is filed.

4. To the contrary, it is the case of the petitioner/accused that the respondent/complainant is also having a Car finance business in the name of Thangam Cars, whereunder, he is in the business of buying and selling/financing the used cars. The petitioner/accused had purchased a Car, bearing registration No.TN38 U 9091 from one Rajesh Kanna, who was examined as D.W.1 and at the time of purchase, since the petitioner/accused paid only a sum of Rs.1,40,000/- and there was a balance sum of Rs.1,60,000/- being financed by the respondent/complainant, the subject matter cheque was obtained by him in the year 2009 as security. To fortify the said contention, P.W.2, the Branch Manager of the bank, was cross-examined, in and by which, he proved that only in the year 2009, the subject matter cheque was issued by the bank to the accused when the Branch office was at No.152, Burgur Road, Opposite to G.H.Anthiyur, Erode District, while, at the time of transaction, as mentioned by the respondent/complainant, in the year 2014, the bank was shifted to some other premises. Therefore, according to the learned Counsel, the witness may lie, but, the circumstances will not lie and therefore, in this case, the petitioner/accused has categorically proved that this cheque ought to have issued only in the year 2009 and therefore, he would submit that when the case of the respondent/complainant can be doubted, it has to be held that the petitioner/accused has rebutted the presumption and in the absence of any other positive proof for advancement of the said sum of Rs.2,50,000/- either by way of promissory note or by examining any other witness, who have seen the respondent/complainant by giving money as cash, the Trial Court as well as the first Appellate Court ought not to have convicted the petitioner/accused.

5. The learned Counsel for the petitioner/accused would also rely upon the judgment of the High Court of Andhra Pradesh in M/s. Sri Sai Karuna Finance & Enterprises Rep. by its Managing Partner G. Gangadhar Vs. N.Sandhyarani & Another (CDJ 2018 APHC 879), more specifically paragraph No.11, which reads as follows:-

“11) POINT No.2: Since point No.1 is held affirmatively, it has now to be seen whether the accused could dispel the presumption. In Rangappa-s case (1 supra), while observing that Section 139 of N.I Act casts a reverse onus on the accused, the Apex Court has narrated as to how the said reverse burden can be discharged. It was observed thus:

Para 14: x x x x .... While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in