The main legal point established is that once the signature and execution of a cheque are admitted, there is a presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued to discharge a legally enforceable debt, and the burden is on the accused to rebut this presumption.

JUDGMENT

(Prayer: Criminal Revision filed under Section 397 read with 401 of Criminal Procedure Code, praying to set aside the Judgement of conviction imposed in C.A.No.112 of 2018 on the file of the III Additional Sessions Judge, Salem, confirming the Judgment in S.T.C.No.469 of 2015 on the file of the Judicial Magistrate No.IV, Salem dated 20.06.2018.)

1. The Criminal Revision Case has been file seeking to set aside the Judgement in C.A.No.112 of 2018 on the file of the III Additional Sessions Judge, Salem, confirming the Judgment of conviction and sentence imposed in S.T.C.No.469 of 2015 on the file of the Judicial Magistrate No.IV, Salem dated 20.06.2018.

2. The petitioner is the accused and the respondent is the complainant. The respondent had registered a private complaint against the petitioner under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate No.IV, Salem. The learned Magistrate taken the case on file in S.T.C.No.469 of 2015 and after trial, convicted the petitioner for the offence under Section 138 of Negotiable Instruments Act and sentenced to undergo one year Simple Imprisonment and to pay the cheque amount of Rs.3 lakhs as compensation to the defacto complainant. Challenging the said Judgment of conviction and sentence, the petitioner filed appeal before the III Additional Sessions Judge, Salem, in C.A.No.112 of 2018. The learned Sessions Judge after hearing the arguments, dismissed the appeal and confirmed the conviction and sentence passed by the trial Court. Aggrieved over the same, the petitioner has filed the present revision before this Court.

3. The learned counsel for the petitioner would submit that the petitioner has not borrowed any money from the respondent. Infact the respondent was running a chit in which, the petitioner was a subscriber and towards the settlement of his chit amount, the petitioner had issued two blank cheques to the respondent for security purpose in the year 2008. But even after settling the chit amount, the respondent conveniently retained the cheques and after lapse of 6 years, he has misused the cheque and filed the complaint as if, it was issued in the year 2014 towards the amount borrowed from him. He would further submit that the respondent has no financial capacity to lend such a huge amount of Rs.2,70,000/- and he has not stated anything as to how he arranged the said amount in the year 2014. He would further submit that the petitioner issued the said cheque in the year 2008, whereas the cheque has been filled and presented in the year 2014. Further, he has not filed the promissory note at the time of filing the complaint or till he was examined as P.W.1. and only after the cross examination, he produced the promissory note which itself shows that the petitioner had not borrowed any money from the respondent and executed the disputed cheque towards the legally enforceable debt. He would further submit that no notice was served to the petitioner. Only after service of the notice, if the petitioner not repaid the cheque amount within the statutory period, then the cause of action would arise for filing complaint under Section 138 of Negotiable Instruments Act. But the respondent has not proved that the statutory notice was served on the petitioner and simply stated that the mother of the petitioner had received the notice. Further the respondent has altered the year in the cheque which is a material altercation. Therefore, the respondent has not approached the Court with clean hands and even he has not complied with the statutory provision under Section 138 of Negotiable Instruments Act, whereas both the Courts below have failed to consider the same and arrived at a conclusion as if, the petitioner had borrowed money from the respondent and issued the cheque to discharge the legally enforceable debt without having sufficient funds in his account and subsequently, the cheque was dishonoured. The findings of the Courts below are perverse which wa