The presumption under Section 139 of the Negotiable Instruments Act applies strongly in favor of the complainant, and the accused must provide substantive evidence to rebut it for a successful defense.

JUDGMENT :

M.NIRMAL KUMAR, J.

1. The appellant as complainant filed a private complaint against the respondent in C.C.No.332 of 2019 before the learned Judicial Magistrate No.I, Namakkal. The Trial Court by judgment dated 25.03.2021 dismissed the complaint and discharged the respondent. Against which, the present appeal filed.

2. In this case, notice was ordered to the respondent as per the address in the complaint but the same was returned with an endorsement “left”. Finding that the appeal is pending for quite sometime, this Court appointed Ms.Vrindha as legal aid counsel on 09.12.2025.

3. For the sake of convenience, the parties are referred to as complainant and accused.

4. The complainant filed a private complaint under Section 138 of Negotiable Instruments Act stating that the complainant and the accused are friends, the accused borrowed Rs.6,95,000/- as hand loan and received the same at the complainant's house in the presence of one L.B.Senthilkumar at Thathampatty, Salem for her family needs and agreed to repay the loan amount within a month, but the same was not returned as agreed. After several requests, the accused agreed to repay the loan and issued a cheque vide No.000089 dated 30.03.2019 drawn on Karur Vysya Bank, Nagapattinam Branch for Rs.6,95,000/-. When the cheque was presented in the complainant's bank account at HDFC Bank, Namakkal Branch on 03.04.2019, the same was returned as “Payment stopped by drawer”. Thereafter, statutory notice issued on 02.05.2019 calling upon the accused to pay the cheque amount within 15 days. The accused though received the notice on 09.05.2019 neither repaid the cheque amount nor sent any reply and thereafter, complaint filed. During trial, the complainant examined himself as PW1 and marked four documents, Ex.P1/cheque, Ex.P2/return memo, Ex.P3/statutory notice and Ex.P4/postal acknowledgment. The accused examined herself as DW1 and marked five documents, Ex.D1/letter given to Karur Vysya Bank for stop payment, Ex.D2/Transfer order of accused to Nagapattinam, Ex.D3/Deputation of accused to valuation work, Ex.D4/Attendance Certificate for attending valuation work at Pattukottai from 06.05.2019 to 09.05.2019 and Ex.D5/On-duty slip. On conclusion of trial, the Trial Court finding that the accused had probabilized her defence and the complainant failed to prove the case beyond all reasonable doubt, dismissed the complaint. Against which, the present appeal filed.

5.The learned counsel for the complainant submitted that the Trial Court failed to see that the burden of disproving the presumption raised by issuance of cheque falls on the accused but the Trial Judge had given a finding that the burden of proof for the offence was on the complainant failing to consider that statutory presumption is against the accused. In this case, the accused had not denied the cheque but taken a stand as though cheque was lost and given stop payment to the Bank. On seeing Ex.D1, it is clear that the accused aware of handing over of the cheque, for that reason only she had given instruction to the bank as “in case any cheque come for collection to her account, that payment should be stopped”. One of the reason given by the Trial Court is that the complainant had not mentioned the date of lending of money or the date on which the demand for repayment of loan made and the accused agreeing to repay, these particulars not given. But the Trial Court failed to take into consideration that as per Section 118 and 139 of Negotiab