The presumption of debt under Section 139 of the Negotiable Instruments Act is not rebutted by mere denial; the accused must provide credible evidence to support their defense.

ORDER :

The appellant, who is the defacto complainant in S.T.C.No.153 of 2005, has filed this appeal challenging the acquittal judgment passed in S.T.C.No.153 of 2005, dated 31.05.2011, by the learned Judicial Magistrate No.III, Madurai.

2.The case of the appellant is that the respondent borrowed a sum of Rs.3,00,000/- for his family expenses, from him. Both have had long relationship prior to the borrowal. Towards repayment of the said amount, the respondent issued a cheque bearing No.621515, under Ex.P.1, dated 08.12.2003, for the value of Rs.3,00,000/- drawn on State Bank of India, Vinayagar Nagar Branch, Madurai, in favour of the appellant. While, the appellant presented the same on the same day for encashment through account maintained by him with the Indian Overseas Bank, Vadampokki Stree Branch, Madurai, the same was returned on 09.12.2003 with an endorsement “Insufficient of Funds”, for which, the appellant issued the statutory notice on 07.01.2004. The notice was duly served on the respondent on 09.01.2004 and further, the respondent neither paid any amount nor sent any reply. Hence, the appellant filed a complaint under Section 138 r/w 142 of Negotiable Instruments Act, and the same was taken on file in S.T.C.No.153 of 2005, by the learned Judicial Magistrate No.III, Madurai.

3.The learned trial Judge issued summons to the accused and after his appearance, served the copies under Section 207 Cr.P.C. Thereafter, he framed necessary charges and questioned the accused. The accused pleaded not guilty and he stood for trial.

4.The defacto complainant, to prove her case, examined herself as P.W.1 and one Narayanan as P.W.2 and exhibited 5 documents as Ex.P.1 to Ex.P5. The learned trial judge thereafter, questioned the accused under Section 313(1)(b) of Cr.P.C., by putting incriminating materials available on record. The accused denied the same as false and he examined himself as D.W.1 and exhibited 4 documents as Ex.D1 to Ex.D4.

5.The learned trial judge, after considering the oral and documentary evidence, passed impugned judgment in S.T.C.No.153 of 2005, dated 31.05.2011, acquitting the respondent for the offence under Section 138 r/w 142 of NI Act. Aggrieved over the same, the appellant filed in C.A.No.136 of 2017, before the learned VI Additional District and Sessions Judge, Madurai, and in view of development of law and as per the Hon'ble Full Bench Judgment of this Court in Crl.A.Nos.89 and 90 of 2020 and Crl.R.C.Nos.494 and 536 of 2019, dated 28.05.2020, the appeal was transferred from the District Court to this Court. Thereafter, this Court issued notice to the appellant as well as the respondent and both appeared through their counsel.

6.The learned counsel appearing for the appellant would submit that the respondent has admitted the issuance of cheque and also the receipt of the portion of the consideration. During the pendency of the proceedings, he also made part payment of Rs.25,000/- and also received the proper acknowledgment for handing over the said amount. In view of the above circumstances, the presumption under Section 139 of NI Act, would come into operation and hence, the acquittal judgment passed by the learned trial judge is not correct. The case of the defence that he only borrowed a sum of Rs.1,00,000/- is not proved through legal evidence. Therefore, he seeks for setting aside the acquittal judgment passed by the learned trial Judge. To substantiate his contention, he relied the following judgment of the Hon'ble Supreme Court:

(i) Sham Kant v. State of Maharashtra , reported in 1992 SCC (Cri) 765 at page 533

(ii) Babu Sahebagouda Rudragoudar v. State of Karnataka , reported in (2024) 8 SCC 149

(iii) Kumar Exports v. Sharma Carpets , reported in (2009) 2 SCC 513 )

(iv) Sri Sujies Benefit Funds Ltd. v. M. Jaganathuan , (2024) 246 Comp Cas 486 : 2024 SCC OnLine SC 1942

(v) Kalamani Tex v. P. Balasubramanian , (2021) 5 SCC 283

(vi) Sumeti Vij v. Paramount Tech Fab Industries , (2022) 15 SCC 689

7.The learned