The burden of proof on the accused to disprove the existence of any legally recoverable debt or liability under the Negotiable Instruments Act.

JUDGMENT

(Prayer: Criminal Revision Case filed under Sections 397(1) r/w 401 of the Code of Criminal Procedure, to call for the records and set aside the acquittal Judgment passed in S.T.C.No.198 of 2012 on the file of the learned Judicial Magistrate cum Fast Track Court No.2, Madurai, dated 14.09.2016 and confirmed by the Judgment dated 09.11.2018 in C.A.No.91 of 2016 on the file of IV Additional District and Sessions Judge, Madurai.)

1. This revision has been filed to set aside the order passed in S.T.C.No.198 of 2012, dated 14.09.2016, on the file of the learned Judicial Magistrate cum Fast Track Court No.2, Madurai, confirming the Judgment made in C.A.No.91 of 2016, dated 09.11.2018 on the file of the learned IV Additional District and Sessions Judge, Madurai.

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

3. The crux of the complaint is that the petitioner had lent a sum of Rs.5,30,000/- to the respondent for his urgent business purpose and also to meet out the expenses for the reconstruction of his lodge. Towards repayment of the said amount, the respondent issued a cheque for a sum of Rs.5,30,000/- and the same was presented for collection. However, it was returned dishonoured for the reason ''funds insufficient''. After causing statutory notice, the petitioner lodged a complaint.

4. In order to prove his complaint, the petitioner himself was examined as P.W.1 and also marked Exs.P.1 to P.5 and on the side of the respondent, he had examined D.W.1 to D.W.4 and Ex.D.1 to Ex.D.3 were marked.

5. On perusal of the oral and documentary evidence, the trial Court found the accused not guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and acquitted the respondent. Aggrieved by the same, the petitioner preferred an appeal in C.A.No.91 of 2016 on the file of the learned IV Additional District and Sessions Judge, Madurai and the Appellate Court also dismissed the same, confirming the order of the trial Court. Hence, the present revision.

6. The learned counsel appearing for the petitioner would submit that the signature and issuance of cheque were not denied by the respondent. Therefore, the petitioner had discharged his initial burden as contemplated under Section 138 of the Negotiable Instruments Act. That apart, the respondent failed to rebut the presumption arising under Sections 118 and 139 of the Negotiable Instruments Act by cogent evidence. Though the respondent had examined D.W.2/Banker and he deposed that he cannot say that the cheque would not have been issued in the year 2011, though the subsequent cheque Ex.P.1 was honoured during the year 2006-2007. Even assuming that the said cheque was issued for the purpose of security, the respondent did not take any steps to return back the cheque, after repaying the entire loan amount. Further, the respondent stated that in the earlier transaction, the cheque was issued as a security and after completion of the said loan, the cheque which was issued for security was not returned by the petitioner, the respondent failed to produce any iota of evidence to show that there was an earlier transaction between the petitioner and the respondent herein in order to prove that Ex.P.1 was issued for the purpose of security. In support of his contention, he relied on the following Judgments:-

(i) T.Vasanthakumar Vs. Vijaykumari reported in (2015) 8 SCC 378.

(ii) M.Senguttuvan Vs. S.Balasubramanian [Crl.R.C.No.779 of 2018, dated 09.11.2022.

(iii) Gunasekaran Vs. Dhandapani [Crl.R.C.No.12 of 2018, dated 19.01.2021.]

(iv) T.P.Murugan (dead) through legal representatives Vs. Bojan reported in (2018) 8 SCC 469.

7. Per contra, the learned counsel appearing for the respondent would submit that the alleged cheque was issued for the purpose of security, that too,