ORDER :

Prayer: Criminal Revision case filed under Section 397 r/w Section 401 of Code of Criminal Procedure, to set aside the order dated 16.08.2018 made by the Fast Track Mahila Judge, Namakkal, in C.A.No.22 of 2018, reversing the order dated 13.02.2018, passed by learned Judicial Magistrate (Fast Track), Tiruchengode, in STC.No.22 of 2017.

This criminal revision is directed as against the judgment passed in C.A.No.22 of 2018 dated 16.08.2018 on the file of the Fast Track Mahila Judge, Namakkal, thereby reversed the findings in S.T.C.No.22 of 2017 dated 13.02.2018 on the file of the Judicial Magistrate (Fast Track), Tiruchengode, thereby acquitted the petitioner for the offence under Section 138 of Negotiable Instruments Act.

2. The petitioner is an accused in the complaint lodged by the respondent for the offence under Section 138 of Negotiable Instruments Act.

3. According to the respondent, on 17.03.2015, the petitioner borrowed a sum of Rs.7 Lakhs for his urgent need and agreed to repay the same with interest at the rate of Rs.1.50 per month per hundred and he also executed a promissory note in favour of the respondent. The petitioner bad been paying the interest regularly to the respondent. When the respondent asked for principal payment, the petitioner issued a post dated cheque on 15.07.2016 in order to discharge the principal amount of Rs.7 lakhs and thereafter, the petitioner received back the promissory note which was already executed by him. When the said cheque was presented for collection and the same has been returned for the reason “Payment Stopped by the Drawer”. After causing statutory notice to the petitioner the respondent lodged a complaint.

4. On the side of the respondent PW1 was examined and Exs.P1 to 6 were marked and on the side of the petitioner no one was examined and no document was marked.

5. On perusal of oral and documentary evidence, the trial Court found the petitioner not guilty for the offence under Section 138 of NI Act and acquitted the petitioner. Aggrieved by the same the respondent preferred an appeal and the first Appellate Court reversed the findings of the trial Court and found the petitioner guilty for the offence under Section 138 of NI Act and sentenced him to undergo one year simple imprisonment and imposed fine of Rs.5,000/- in default to undergo three more months simple imprisonment along with compensation of Rs.1 lakh. Hence the revision.

6. The learned counsel for the petitioner would submit that there was no legally enforceable debt. The alleged cheque was issued to one Ramesh Kumar, while borrowing loan from him, as security and after discharging the loan the said Ramesh Kumar failed to return the same. Subsequently, the said cheque was misused by the respondent to initiate proceedings under Section 138 of NI Act. No prudent man would return the promissory note which was executed in favour of the creditor on receipt of the cheque. The alleged cheque was signed by the petitioner and filled by the respondent. The trial Court rightly found that both were in different inks and hence not filled by the petitioner. It shows that the cheque was issued for security purpose that too to another person and it amounts to material alteration and as such, the offence under Section 138 of NI Act would not at all be attracted and the respondent failed to discharge his initial burden as required under Section 138 of NI Act.

7. He would further submit that on receipt of the statutory notice, the petitioner categorically denied the issuance of cheque by reply notice dated 16.08.2016 which was marked as Ex.P6. In the said reply notice, he categorically stated that he had no acquaintance with the respondent and he never borrowed any loan from the respondent. Therefore, the petitioner clearly rebutted the presumption arising out of Section 139 of NI Act. Therefore, the trial Court rightly acquitted the petitioner and unfortunately, the first Appellate Court reversed the findings of the trial Court for t