The presumption of liability under Sec. 139 of the NI Act favors the complainant and must be rebutted by the accused.

JUDGMENT

(Prayer: Criminal Revision Case is filed under Section 397 of 401 of the Code of Criminal Procedure, to set aside the order Judgment dated 23.04.2018 made in Crl.A.No.77 of 2018, on the file of the Learned II Additional District and Sessions Judge, Thiruvallur at Poonamallee.)

1.This Criminal Revision is filed aggrieved by the conviction for the offence under Section 138 of the Negotiable Instruments Act, 1881, by Judgment dated 24.04.2018, the learned Fast Track Court Magisterial Level No.II, Poonamalee, Thiruvallur District in S.T.C.No.14 of 2017, and sentencing him to undergo 12 months of Simple Imprisonment and to pay a fine of Rs.15,00,000/- (Rupees Fifteen Lakhs only) as compensation and in default of payment to undergo four weeks of Simple Imprisonment and the conviction and sentence being confirmed by the Judgment dated 23.04.2019 by the II-Additional District and Sessions Judge, Thiruvallur at Poonamallee in C.A.No.77 of 2018. Aggrieved by the same, the present revision is filed before this Court.

2. Heard Mr.A.Nagarajan, learned Counsel for the petitioner and Mr.R.Murali, learned Counsel appearing for the respondent.

3. The learned Counsel for the petitioner would submit that in this case, the statutory notice was issued beyond the period of 30 days from the date of return of the Cheque. According to him, from the perusal of Ex.P-2/ Memo of dishonour filed by the petitioner himself, it is clear that the Cheque was returned on 12.08.2016. Even though the legal notice dated 11.09.2016 was posted only on 14.09.2016 and therefore, it is clearly beyond the period of 30 days. Thus, the conviction of the petitioner is straight away liable to be interfered with. This apart the learned Counsel would submit that in this case, the plea of the petitioner/accused is that the complainant had paid to the accused only a sum of Rs.9 Lakhs, along with interest, and the accused had repaid the sum of Rs.10,24,000/- (Rupees Ten Lakhs Twenty Four thousand only) and therefore, the Cheque issued as security is being misused by the complainant. Therefore, there is no legally enforceable liability. The learned Counsel would further submit that the complainant has been duly cross-examined in this regard and from the fact that the complainant can prove only a sum of Rs.9 Lakhs is only through Bank transaction and he is pleading that another sum of Rs.6 Lakhs being paid as cash by itself would prove the case of the petitioner/accused. Therefore, the learned Counsel would submit that this is the case for interference by this Court in the exercise of its power.

4. Per contra, the learned counsel for the respondent would submit that as far as the statutory notice is concerned, as per the return memo, the Cheque was dishonoured on 12.08.2016, and the 13.08.2016 is Saturday, 14.08.2016 is Sunday and 15.08.2016 is the Independence Day holiday, and therefore, the dishonoured Cheque along with return memo was issued to the respondent only on 17.08.2016. Therefore, the statutory notice issued on 14.09.2016, is within the period of 30 days. The learned Counsel further would submit that in fact, Ex.P-18, which is the letter issued by the INDUS IND Bank, which clearly confirms that the branch received the Cheque from the clearing house only on 16.08.2016, and thereafter it was collected by the complainant. Therefore, the learned Counsel further would submit that the complainant has clearly proved that the statutory notice is issued within the time.

5. As far as the other contention is concerned, the learned Counsel would submit that the complainant has clearly pleaded that a sum of Rs.9 Lakhs was paid through a Banking transaction, which is also admitted by the accused/petitioner. The accused only disputing the sum of Rs.6 Lakhs by cash. The complainant is protected by the presumption under Sections 118 and 139 of the NI Act. The accused even though has pleaded that he also repaid the sum of Rs.10,24,000/- absolutely nothing was produced by him before th