A complaint under Section 138 must provide sufficient details about the relationship and financial capacity; mere presumption is insufficient for conviction without material evidence.

ORDER :

1. This Criminal Revision had been filed to set aside the Judgment dated 19.07.2017 passed in Crl.A. No. 207 of 2016 on the file of the learned Additional District and Sessions Judge-II, Erode confirming the Judgment dated 31.05.2016 passed in STC.No.420 of 2012 on the file of the learned Judicial Magistrate, Fast Track Court-II, Erode.

2. The brief facts, which are necessary for the disposal of this Criminal Revision Case, are as follows:-

2.1. As per the complaint before the learned Judicial Magistrate, Fast Track Court-II, Erode, the Accused was alleged to have borrowed Rs.10,00,000/- (Rupees Ten lakhs only) from the Complainant on 19.04.2012 to meet her urgent family expenses. At the time of borrowing the amount, the Accused alleged to have issued a post-dated cheque, mentioning the date as 19.06.2012, for the amount borrowed. When the said cheque was presented by the Complainant on 29.06.2012 with his Bank, it was returned as “Account Dormant”. Therefore, the Complainant had issued a notice on 07.07.2012 calling upon the Accused to pay the cheque amount. Though the notice was received by the Accused on 10.07.2012, he had not given any reply. After waiting for a reasonable time, the Complainant had filed the Complaint before the learned Judicial Magistrate, Fast Track Court-II, Erode to punish the Accused for having committed the offence under Section 138 of The Negotiable Instruments Act, 1881.

2.2. On appearance of the Accused , copies of the documents filed by the Complainant were furnished to him. When the Accused was questioned about the incriminating materials available against him, he denied the same. Therefore, the learned Judicial Magistrate, Fast Track Court-II, Erode ordered trial. During trial, the Complainant examined himself as P.W-1 and marked documents under Ex.P-1 to Ex.P-4. After completion of evidence of the Complainant, the Accused was examined by the learned Judicial Magistrate, Fast Track Court-II, Erode, under Section 313 of Cr.P.C. but he denied the evidence made available. After the proceedings under Section 313 of Cr.P.C, the Accused summoned the Manager of the Canara Bank, Karungalpalayam, Mr. Thamaraiselvan and examined him as D.W-1 and marked Ex.D-1.

2.3. The learned Trial Judge, on consideration of the oral and documentary evidence concluded that the Accused had not issued a reply notice to the notice dated 07.07.2012 sent by the Complainant. There is no material evidence filed by the Accused to show that the cheque was not issued for a legally enforceable debt or liability. When the Complainant had proved the initial presumption under law that the cheque was issued for a legally enforceable debt and liability, it is for the Accused to rebut such presumption. However, the Accused failed and neglected to rebut the initial presumption raised by the Complainant. While so, the Accused had committed an offence punishable under Section 138 of The Negotiable Instruments Act, 1881. Accordingly, the trial Court by the Judgment dated 31.05.2016 convicted the Accused for the offence punishable under Section 138 of The Negotiable Instruments Act, 1881 and sentenced her to undergo simple imprisonment for a period of one year with fine of Rs.5,000/-, in default, to undergo three months simple imprisonment.

2.4. On appeal, the learned II Additional Sessions Judge, Erode concluded that there