The accused may rebut statutory presumptions of liability in cheque dishonor cases; once done, burden shifts back to the complainant to prove the case effectively.

ORDER :

M. Nirmal Kumar, J.

The respondent as complainant filed a private complaint against the petitioner/accused for offence under Section 138 of Negotiable Instruments Act, 1881 in C.C.No.676 of 2011 before the learned Judicial Magistrate, Fast Track Court, Vellore (trial Court). The trial Court by judgment dated 26.12.2011 dismissed the complaint and acquitted the petitioner/accused. Challenging the same, the respondent/complainant preferred an appeal before the learned Principal Sessions Judge, Vellore (lower appellate Court) in Crl.A.No.53 of 2018 and the same was allowed on 25.09.2019 setting aside the judgment of the trial Court and convicted the petitioner for offence under of Negotiable Instruments Act, 1881 and directed to pay twice the cheque amount of Rs.5,00,000/- to the respondent/complainant in default to undergo Simple Imprisonment for three months. Against which, the present criminal revision case filed by the petitioner/accused.

2.Despite service of notice and the respondent’s name printed in the cause list, no representation for the respondent either in person or by any counsel. Hence, this Court by order dated 30.08.2024 appointed Ms.K.Meena as Legal Aid Counsel for the respondent.

3.Gist of the case is that on 20.03.2009 the petitioner borrowed a sum of Rs.2,50,000/- on the promise that the same will be returned within a period of two months with interest @ 24%. At that time, the petitioner issued a cheque (Ex.P1) bearing No.478872 dated 20.05.2009 drawn on ICICI Bank, Vellore Branch for a sum of Rs.2,50,000/-. When the cheque presented for collection on 06.06.2009, the same returned with an endorsement 'Insufficient Funds'. Thereafter, legal notice issued on 15.06.2009 but the petitioner neither paid the cheque amount nor sent any reply. Following the statutory provisions the respondent/complainant filed a private complaint before the Trial Court under Section 138 of Negotiable Instruments Act, 1881. During trial, the complainant examined himself as PW1 and marked Exs.P1 to P5. The petitioner/accused examined two witnesses DW1 and DW2 and marked Exs.D1 & D2. The Trial Court after full fledged trial finding that the complainant failed to prove the case against the accused acquitted the petitioner/accused from the above case. Against the acquittal, the respondent/complainant filed an appeal and the Lower Appellate Court reversed the acquittal and convicted the petitioner/accused as stated above. Against which, the present revision is filed.

4.The contention of the petitioner is that the petitioner never borrowed any amount from the respondent/complainant and the petitioner earlier availed vehicle loan from Dhanalakshmi Finance, at that time, he gave the cheque (Ex.P1) as security for the vehicle loan. The petitioner defaulted in making payment for the vehicle loan and the vehicle was seized and recovered by the Financier. Thereafter, the cheque, which was given as security, misused by the respondent, who is a stranger to the petitioner and projected false case. During cross examination of PW1, the same elicited. The Trial Court considering the same rightly acquitted the petitioner. But the Lower Appellate Court failed to look into the fact that it is for the complainant to prove prima facie case and thereafter, it is for the accused to rebut the presumption. On the contrary, the lower appellate Court held that the accused failed to rebut the statutory presumption of Sections 118 and 139 of Negotiable Instruments Act, 1881 and convicted the petitioner.

5.Learned counsel for the petitioner further submitted that the respondent admits that on 2