The burden to rebut the presumption and prove the earlier transaction and discharge shifts to the accused.

JUDGMENT

(Prayer: Criminal Revision Petition is filed under Section 397 & 401 of Cr.P.C., to set aside the judgment and conviction dated 13.12.2019 made in C.A.No.384 of 2018 (on the file of the Court of II Additional District and Sessions Judge, Erode) and confirming the judgment and conviction dated 22.10.2018 made in S.T.C.No.381 of 2017 on the file of Judicial Magistrate, Fast Track Court No.1, Erode.)

1. This Criminal Revision Petition is preferred against the concurrent finding of the Courts below holding the revision petitioner guilty of offence under Section 138 of N.I. Act, 1881, for issuing a cheque to the complainant/respondent for a sum of Rs.3,50,000/-, dated 15.05.2017, to discharge the existing debt but failed to honour the cheque. When the cheque was presented for collection on 19.06.2017, it was returned with memo dated 20.06.2017 stating for “OTHER REASON”. The complainant has issued statutory notice on 01.07.2017, calling upon the accused to pay the cheque amount of Rs.3,50,000/-, within the period of 15 days from the date of receipt of the notice. The accused/revision petitioner received the statutory notice on 04.07.2017 but failed to make payment. Hence, a private complaint presented before the Judicial Magistrate No.I, Erode, same was taken on file in S.T.C.No.381 of 2017.

2. To prove the complaint, four exhibits were marked and complainant was examined as P.W.1. To disprove the case of the complainant and rebut the presumption, accused examined himself as D.W.1 and three other witnesses and marked three Exhibits as D.W.1 to D.W.3.

3. After considering the evidence, the trial Court had held that the accused has not disproved the case by any preponderance of probability. The defence, that the cheque Ex.P.1, dated 15.05.2017 was given to the complainant in the year 2009 and that has been misused by the complainant is not been proved. The trial Court directed the accused/revision petitioner to pay compensation of Rs.3,50,000/- besides one year S.I.

4. On appeal by the accused, the Lower Appellate Court considered the grounds of appeal in C.A.No.384 of 2018 and confirmed the judgment and conviction rendered by the trial Court.

5. Against the concurrent finding of the Courts below, the present revision petition is filed on the ground that the complainant has not discharged his initial burden of proving that, Ex.P.1 cheque issued towards the legally enforceable debt. The admission of the complainant that, he is the close relatives of the accused, there was money transaction between them and same been discharged twice, not been properly considered by the trial Court.

6. The case of the accused is that, for the hand loan of Rs.40,000/- borrowed in the year 2014, he made signature in blank papers and cheques and it were handed over to the complainant. In spite of repaying the loan in the year 2016, the stamp papers signed in blank and the cheques were not returned and this was not considered by the Courts below.

7. The Learned Counsel appearing for the revision petitioner would submit that the accused through defence evidence and documents had proved that the subject cheque was drawn from his account opened at Karur Vysya Bank on 09.02.2007 and the subject cheque in the book containing 20 cheque leaves was issued to him by the Bank on 19.05.2009. The cheque following the same serial number was encashed by a third party on 07.09.2011 and therefore, the Courts below ought to have held that the subject cheque No. 825866 ought not to have been issued in the year 2017 to discharge the debt incurred since the cheque No.825873 which is subsequent to Ex.P.1 was encashed as early as 07.09.2011.

8. In this case, the complainant has mounted the witness box and deposed that Ex.P.1 cheque was issued by the accused to discharge the debt. The subject cheque dated 15.05.2017 marked as Ex.P.1, Bank return memo Ex.P.2 dated 20.06.2017 marked as Ex.P.2, Statutory Notice dated 01.07.2017 marked as Ex.P.3, the notice has been received by the