The accused can rebut the statutory presumption under Section 139 of the NI Act by raising a probable defense that creates doubt about the existence of a legally enforceable debt or liability, shifting the burden to the complainant to establish the liability.

JUDGMENT

(Prayer: This Criminal Revision case has been filed, under Sections 397 and 401 of Cr.PC, to set aside the conviction imposed in the judgement dated 07.04.2017 made in C.A.No.6 of 2016 on the file of the learned First Additional District and Sessions Court, Erode confirming the conviction imposed in the judgement dated 04.12.2015 made in STC.No.446 of 2013 on the file of the learned Judicial Magistrate, Fast Track Court No.2, Erode by allowing this Criminal Revision Petition.)

The Revision challenges the judgment of the Learned I Additional District and Sessions Court, Erode dated 07.04.2017 passed in C.A.No.6 of 2016 confirming the judgment of conviction and sentence for the offence under Section 138 of the NI Act passed by the Learned Judicial Magistrate, Fast track Court II, Erode, in STC NO. 446 of 2013 dated 04.12.2015.

2. The case of the complainant/respondent is that the petitioner borrowed a sum of Rs. 21,00,000/-(Rupees Twenty one Lakhs only) for his urgent business on 24.10.2011 and towards discharge of the said debt issued a cheque for the said amount dated 24.01.2012. The respondent presented the cheque for collection in his bank viz., Union Bank of India, Erode branch on 02.02.2012 and the said cheque was dishonered on 3.02.2013 with an endorsement --Funds Insufficient--. The respondent sent registered statutory notice on 01.03.2012, the said notice was received by the accused on 02.03.2012. Since the petitioner did not make payment or replied to the notice, the respondent had filed a complaint under Section 138 of the Negotiable Instrument Act.

3. The respondent examined himself as P.W.1 and marked Exs.P.1 to P.9. The defendant examined one Kotteeswaran as D.W.1 and marked Exs.D.1 to D.3. The petitoner’s defence before the trial Court as could be seen from the evidence of the witnesses, was that this cheque was taken away by his lawyer one Kotteeswaran who was examined as D.W.1 and handed over the same to the respondent; that he did not owe the cheque amount to the respondent ; that the respondent sent an e-mail on 07.11.2011 stating that he had deposited certain amounts totalling a sum of Rs.15,50,000/-(Rupees Fifteen Lakhs and Fifty thousand only) with the petitioner, out of which he had received Rs.3,80,000/-(Rupees Three Lakhs and Eighty thousand only) and only the remaining amount need to be settled. The petitioner’s case, therefore, was that the version of the respondent that the petitioner took a loan on 24.10.2011 cannot be true. Further, his case was that the respondent had invested money for purchase of commodities between the period from 01.04.2010 to 03.09.2010 and the respondent incurred a loss of Rs.1,36,621/- (Rupees One Lakh Thirty six thousand six hundred and twenty one only) which was deducted from the account of the petitioner, by one M/S.Adroit Financial Commodity Service Pvt. Ltd., with whom the respondent invested money through the petitioner. D.W.1/Kotteeswaran who was his lawyer had also independently filed a complaint by misusing the cheque, which was not given for any debt or liability.

4. The learned trial Judge, found that Exs.D.1 and D.3 are electronic records and hence, they are inadmissible in the absence of Certificate under Section 65-B of the Indian Evidence Act. The trial Judge further found that the petitioner had not stated his defence case, when he was questioned under Section 313 of Cr.P.C. Thus, the learned trial Judge found that the petitioner had not rebutted the statutory presumption and hence, the complainant need not establish the liability; that the Court can presume the existence of liability as per Section 139 of NI Act.

5. The learned Appellate Judge confirmed the finding of the learned trial Judge and held that since the respondent has proved the foundational facts, the Court shall presume the existence of legally enforceable liability. The Appellate Court also found that the petitioner did not send any reply to the statutory notice and he had not stated anythi