The burden of proof lies with the complainant to establish the offence under Section 138 of the Negotiable Instruments Act beyond reasonable doubt, and the accused can probabilize her defense without stepping into the box.

ORDER :

Prayer: Criminal Revision Case is filed under Section 397 and 401 of Cr.P.C., to set aside the order dated 21.06.2017 in C.A.No.60 of 2016 passed by the II Additional District Sessions Court, Tirupur confirming the order of conviction in C.C.No.13 of 2015 by Fast Tract Court, Tirupur.

This Criminal Revision Case is filed against the concurrent finding of the Courts below holding the petitioner guilty of offence under Section 138 of Negotiable Instruments Act.

2. In C.C.No.13 of 2015, the trial Court by judgment dated 26.04.2016 found the petitioner guilty, convicted and sentenced her to undergo one year rigorous imprisonment and fine of Rs.1,000/-, in default, to undergo one month simple imprisonment. On appeal, the conviction and sentence was confirmed by the II Additional District Sessions Court, Tirupur in C.A.No.60 of 2016. Aggrieved by that, the petitioner has preferred this present petition.

3. The case of the complainant is that the petitioner / accused is a good friend of the respondent / complainant. On 04.06.2012, the petitioner approached the complainant for a loan amount of Rs.7 lakhs for her urgent family need and business expenses and assured to repay the same during December 2012 and the petitioner / accused received the loan amount on 04.06.2012. To discharge the debt she gave a cheque bearing No.993319 dated 10.12.2012 drawn at ICICI Bank, Indira Nagar, Tirupur Branch for a sum of Rs.7 lakh. The complainant presented the cheque in his Bank viz., Indian Overseas Bank, Velampalayam, Tirupur Branch on 10.12.2012, the same was returned on 12.12.2012 with an endorsement “Insufficient Funds”. Thereafter, statutory notice was issued on 20.12.2012 and same was received by the accused on 21.12.2012. But, she neither repaid the cheque amount nor sent any reply. Hence, the complaint under Section 138 of Negotiable Instruments Act was filed and same was taken on file by the trial Court in C.C.No.13 of 2015.

4. To prove the case, the complainant has examined himself as P.W.1 and 5 documents were marked as Exs.P1 to P5. Ex.P1 is the cheque, Ex.P2 / Bank return memo, Ex.P3 / statutory notice, Ex.P4 / Postal acknowledgement for receipt of the notice by the accused and Ex.P5 is the income tax returns of the complainant for the Assessment Year 2013-2014. Thereafter, the complainant was cross examined by the petitioner. On the side of the defence, no witness was examined or document marked. On conclusion of the trial, the trial Court convicted the petitioner and it was confirmed by the lower appellate Court, as stated above.

5. The contention of the learned counsel for the petitioner is that the trial Court as well as the lower appellate Court failed to consider that the respondent / complainant had produced no other documents except the cheque to prove that he advanced such a huge amount of Rs.7 lakh without coverage of any security or other documents. Further, he submitted that it is strange to see that the respondent admits that on the same day i.e., on 04.06.2012, he arranged Rs.7 lakhs, though on that day he was having only an amount of Rs.3 lakhs with him and he had arranged balance Rs.4 lakhs from his friend, Karupasamy of Amma Palayam, which is highly improbable. The respondent / complainant have no source of income to advance such huge amount.

5.1. The specific case of the petitioner is that earlier, she had taken a loan of Rs.50,000/- at that time the cheque/Ex.P1 was given as security and Rs.50,000/- had been repaid by her. Thereafter, the respondent had not returned the security cheque and later filled up with such huge amount of Rs.7 lakhs and lodged a false complaint. He further submitted that the Hon'ble Apex Court in the case of John K. Abraham Vs. Simon C. Abraham and Another reported in (2014) 2 SCC 236 had held that the presumption under Sections 118 and 139 of the Negotiable Instruments Act was not irrebuttable presumption, once the petitioner is able to dislodge the presumption and probabilise her defence,