The presumption of consideration in cheque transactions under Sections 118 and 139 of the Negotiable Instruments Act, 1881, places the burden on the accused to disprove the validity of the cheque.

ORDER :

M.Nirmal Kumar, J.

The Criminal Revision Case is filed against order dated 14.08.2023, passed by the learned I-Additional District and Sessions Judge, Tiruvallur in Criminal Appeal No.152 of 2022, confirming the Judgment and Conviction passed by the learned Judicial Magistrate, Fast Track Court at Magisterial Level, Tiruvallur in S.T.C.No.19 of 2021, dated 28.11.2022.

2.The gist of the case is that the Petitioner / Accused and the Respondent / Complainant are friendly neighbours. On 28.01.2018, the Petitioner borrowed a hand loan of Rs.11,00,000/- from the respondent by executing a promissory note to replay the amount with 12% interest per annum and a issued post dated cheque, dated 18.12.2020, bearing No.114593, for a sum of Rs.11,00,000/-, drawn on Canara Bank Kotturpuram Chennai. On 18.12.2020, when the respondent presented the cheque in Indian Bank, Thiruninravur Branch for encashment, it was returned as “Funds Insufficient” vide Challan, date 19.12.2020. The Respondent issued a legal Notice dated 26.12.2020 to the Petitioner. The Petitioner refused to receive the same.

3. Mr.T.Sivagananasambandan, the learned counsel appearing for the petitioner/accused would submit that the petitioner was convicted by the learned Judicial Magistrate, Fast Track Court at Magisterial Level, Tiruvallur in S.T.C.No.19 of 2021 on 28.11.2022, for offence under Section 138 of the Negotiable Instruments Act, 1881 , and sentenced him to undergo six months Simple Imprisonment and to pay the cheque amount of Rs.11,00,000/-, as compensation to the respondent/complainant within two months, in default, to undergo a further period of two months Simple Imprisonment. Challenging the same, the petitioner preferred an appeal before the learned I Additional District and Sessions Judge, Tiruvallur, in Crl.A.No.152 of 2022 and the same was dismissed on 14.08.2023, confirming the judgment of the trial Court.

4. The learned counsel would further submit that the respondent filed a private complaint for offence under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner projecting that the petitioner borrowed a hand loan a sum of Rs.11,00,000/- by cash on 28.01.2018 at the respondent's residence. On the same day, the petitioner executed Promissory Note (Ex.P5) agreeing to pay with interest at the rate of 12% per annum, issued a post dated cheque, dated 18.12.2020 for sum of Rs. 11,00,000/- drawn on Canara Bank, Kotturpuram Branch. When the said cheque presented for encahsment, it was returned for the reason 'Funds Insufficient' on 19.12.2020. Thereafter, statutory notice, dated 26.12.2020 issued to the petitioner and the same received by him on 28.12.2020. Despite receipt of notice, the petitioner neither made payment of the cheque amount nor sent any reply. Hence, the complaint was filed by the respondent in S.T.C.No.19 of 2021 before the trial Court. During trial, on the side of the respondent/complainant, the respondent examined herself as PW1 and marked eight documents as Exs.Pl to P8. On the side of the defence/petitioner, three witnesses examined as DW1 to DW3 and marked one document as Ex.D1. The Forensic Report marked as Ex.C1. On conclusion of trial, the trial Court convicted the petitioner as stated above.

5. Adding further, the learned counsel submitted that the respondent admits that she is a housewife, she had drawn cash from the bank and some amount from her husband and son were collected and the loan of Rs.11,00,000/- given to the petitioner by way of cash is not possible. This was not considered by the trial Court as well as the lower appellate Court. In this case, neither the respondent's husband nor her son examined and no documents or materials produced to show that the respondent had an amount of Rs.11,00,000/- in cash and the same was given to the petitioner as loan. The petitioner examined three witnesses viz., DW1 his son, DW2 his wife and DW3 the Bank Manager of Indian Bank where the respondent maintaining the accoun