The presumption under Section 139 of the Negotiable Instruments Act requires the accused to rebut the existence of a legally enforceable liability for the cheque issued.

ORDER :

M.Nirmal Kumar, J.

Challenging the Judgment dated 28.10.2023 in C.A.No.2 of 2023 passed by the learned Additional District and Sessions Judge, Dharmapuri, confirming the Judgment and Sentence of Imprisonment and compensation passed by the learned Judicial Magistrate, Fast Track Court (ML) Dharmapuri in C.C.No.71 of 2019, dated 18.02.2020, the present Revision is filed.

2. Mr.D.Ramesh Kumar, the learned counsel appearing for the Revision Petitioner would submit that the complaint filed by the respondent is unsustainable as there was no legally enforceable liability for the cheque under Ex.P1 as no hand loan obtained by the Revision Petitioner on 13.03.2018 from the respondent / complainant and Ex.P1, dated 13.05.2018 not issued to the complainant for Rs. 5,00,000/- either on 13.03.2018 or any other date to discharge the alleged hand loan, as falsely claimed by the complainant. The complainant not proved that the accused borrowed Rs.5,00,000/-, as hand loan from the complainant on 13.03.2018 and issued Ex.P1, post dated cheque, bearing No 569175, dated 13.05.2018, to discharge the said loan as falsely claimed by the complainant as per notice under Ex.P3. On the contrary, the accused has proved by way of cross examination of PW.1 that the said cheque was issued as blank and signed cheque, as security to one Suresh, who was running a house hold articles shop, towards hire purchase monthly installment for the house hold articles purchased by the accused from the said Suresh on hire purchase basis.

3. The learned counsel appearing for the petitioner further submitted that the complainant not filed any documentary evidence to prove that he lent a loan amount of Rs.5,00,000/- to the accused on 13.03.2018. The complainant has admitted in his cross examination that he did not obtain any demand promissory note or any other document, as proof of loan, from the petitioner for the alleged loan. The complainant has not examined any other witness to prove his claim that he lent hand-loan to the petitioner on 13.03.2018 and the petitioner issued Ex.P1, post dated cheque, on the same day to discharge the said non existing hand loan amount. P.W.1 in his evidence admitted that he was not having sufficient source of income to lend the huge amount of Rs.5,00,000/- as hand loan to the petitioner. PW1 in his cross examination stated that he was running a medical shop as owner. For the next question he answered that he was not owner of the medical shop but he was an employee of that medical shop working on a meager monthly salary. PW.1 in cross stated that he has not disclosed the alleged loan of Rs.5,00,000/- to the accused in his Income Tax Return, but the said loan amount disclosed in the Income Tax Returns filed by his wife and the same not produced by him before the trial court.

4. The learned counsel appearing for the petitioner further submitted that PW.1 not stated in his evidence what was the interest amount payable by the accused on the alleged loan amount. The Courts below passed the Judgment only by observing that when the accused admitted her signature in Ex. P1 cheque, offence u/s 138 of NI Act has been made out against the accused, thereby, completely and arbitrarily ignoring the entire cross examination of PW 1 on several vital and material facts. The learned counsel relied on the decision of this Court in S. Nagalakshmi Vs R. Nagalingam reported in 2012 (3) MLJ Crl. 174 for the point that "if no material is produced by the complainant to prove that he advanced loan to the accused that cannot be any legally enforceable liability and the complaint U/S 138 is liable to dismissed." Further, the learned counsel also relied the decision of this Court N.Seerangan Vs. Khalid Haaji reported in 2012(1) MLJ Crl.741 for the point that when the complainant has failed to prove existence of legally enforceable liability between the complainant and the accused, the complainant is not entitled to relief.

5. The learned counsel further relied on