The presumption in favor of the holder of the cheque when the execution is not denied, and the need for positive evidence to prove lack of means of the respondent.

JUDGMENT

(Prayer: This Criminal Revision has been filed under Section 397 r/w.Sec 401 of Cr.P.C., to call for the records pertaining to the judgment and sentence dated 27.02.2017 passed in Crl.A.No.156 of 2016 by the learned XVIII Addl. Sessions Judge, Chennai confirming the judgment and sentence dated 22.04.2016 passed by the learned Metropolitan Magistrate Fast Track Court – I, Lillipond, Chennai – 3 in C.C.No.4771 of 2010, convicting the petitioner under Section 138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for a period of two years and to pay Rs.15,00,000/- being the Cheque amount as compensation under Section 357(3) Cr.P.C. to the respondent in default to undergo simple imprisonment for three months.)

1. This Criminal Revision has been filed to call for the records pertaining to the judgment and sentence dated 27.02.2017 passed in Crl.A.No.156 of 2016 by the learned XVIII Addl. Sessions Judge, Chennai confirming the judgment and sentence dated 22.04.2016 passed by the learned Metropolitan Magistrate Fast Track Court – I, Lillipond, Chennai – 3 in C.C.No.4771 of 2010, convicting the petitioner under Section 138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for a period of two years and to pay Rs.15,00,000/- being the Cheque amount as compensation under Section 357(3) Cr.P.C. to the respondent in default to undergo simple imprisonment for three months.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

3. The respondent has preferred a complaint against the petitioner for the offence under Sections 138 & 142 of Negotiable Instruments Act. It is alleged by the complainant that the petitioner borrowed a sum of Rs.15,00,000/- from him as a loan and executed a promissory note in his favour. In order to re-pay the said amount, the accused has issued a cheque for Rs.15,00,000/- dated 26.05.2010 drawn on Indian Bank, Chrompet Branch, Chennai-44. When it was presented for collection on 26.05.2010, the same was returned with an endorsement ''funds insufficient''. Therefore, the respondent sent a legal notice through registered post within the statutory time and the same was returned as ''refused''. However, the copy of the notice sent by him through certificate of posting was received by him and he sent a reply denying the allegations. Subsequently, a complaint has been filed by the respondent for the offence under Sections 138 & 142 of Negotiable Instruments Act.

3.1. During the course of the trial, the complainant examined himself as P.W.1 and on the side of the accused, no witness was examined. However, Exhibit D1 was marked. After concluding the trial, by appreciating the evidence on record, the learned Trial Judge found the accused guilty for the offence under Section 138 of Negotiable Instruments Act and convicted him to undergo two years simple imprisonment and awarded compensation of Rs.15,00,000/-. Aggrieved over that, the accused preferred an Appeal in Crl.A.No.156 of 2016 and the said Appeal was also dismissed by confirming the judgment of the Trial Court. The present Revision has been preferred challenging the judgment of the First Appellate Court by stating that the evidence of P.W.1 itself would show that there is no case made out against the petitioner for the offence under Section 138 of Negotiable Instruments Act.

4. The learned counsel for the petitioner submitted that during the examination of respondent / P.W.1, he stated that he had given Rs.1,00,000/- to the petitioner and in the year 2008, he had also given another amount of Rs.2,00,000/- and in between, he had given the other loans; but in the complaint, he has not stated so; even though he has stated that Rs.2,00,000/- was given through cheque, his statement of account does not reveal any such transaction; the respondent did not have any capacity to lend a huge sum of Rs.15,00,000/- to the petitioner; Ex.P1 cheque and Ex.P7 promiss