Presumption under Sections 118/139 of NI Act rebuttable by preponderance of probabilities via cross-examination and circumstances showing cheques for security, not debt; accused need not testify; onus shifts to complainant who failed here; perverse lower court findings set aside in revision.

ORDER :

G.K. Ilanthiraiyan, J.

Crl.R.C.No.1413 of 2022 has been filed against the Judgment 16.06.2022 passed in C.A.No.176 of 2019 on the file of the VII Additional District and Sessions Court, Chennai, thereby confirming the Judgment of conviction and sentence imposed in C.C.No.12002 of 2014, dated 07.03.2019, on the file of the Metropolitan Magistrate, Fast Track Court No.II, Egmore at Allikulam, Chennai, for the offence punishable under Section 138 of the Negotiable Instruments Act.

2. Crl.R.C.No.1414 of 2022 has been filed against the Judgment dated 16.06.2022 passed in C.A.No.175 of 2019 on the file of the VII Additional District and Sessions Court, Chennai, thereby confirming the Judgment of conviction and sentence imposed in C.C.No.3274 of 2016, dated 25.03.2019, on the file of the Metropolitan Magistrate, Fast Track Court No.II, Egmore at Allikulam, Chennai, for the offence punishable under Section 138 of the Negotiable Instruments Act.

3. Though the present revisions are arising out of different Calendar Cases and Criminal Appeals involving different respondents/complainants, the accused in both the cases is one and the same. The complainants, who are brothers, had initiated proceedings under Section 138 of the Negotiable Instruments Act in respect of the very same transaction.

4. In Crl.R.C.No.1413 of 2022, the respondent is the complainant, who lodged a complaint to initiate proceedings under Section 138 of the Negotiable Instruments Act, alleging that the accused approached him for the procurement of property on his behalf and assured that the same will be registered within a period of six months. The accused had shown 3 to 4 properties and received money from the complainant on various occasions to the tune of Rs.15,00,000/-. However, the accused neither entered into any agreement nor returned the money, instead he assured that the same would be repaid within a period of six months. In order to repay the said amount, the accused issued a cheque for a sum of Rs.15,00,000/- and the same was presented for collection. However, the said cheque was returned dishonoured with the endorsement “Funds Insufficient”. After causing a statutory notice, the respondent initiated proceedings under Section 138 of the Negotiable Instruments Act and the same has been taken cognizance by the Trial Court.

5. In order to prove the case, the respondent/complainant had examined himself as P.W.1 and marked documents as Exs.P1 to P4. On the side of the accused, no witnesses were examined and no documents were marked.

6. On perusal of the oral and documentary evidence, the Trial Court found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and also awarded compensation to the tune of double the cheque amount, in default to undergo simple imprisonment for three months. Aggrieved by the same, the accused preferred an appeal. However, the Appellate Court dismissed the appeal and confirmed the order passed by the Trial Court.

7. In Crl.R.C.No.1414 of 2022, the respondent/complainant initiated proceedings under Section 138 of the Negotiable Instruments Act against the accused, alleging that the accused had received a sum of Rs.75,00,000/- from the respondent, his brother, who is the respondent in Crl.R.C.No.1413 of 2022, and his sister one Anitha Malini, on various dates between November 2010 and May 2014, on the pretext of negotiating and purchasing three grounds of land at Jamin Pallavaram. The accused assured that he would repay the entire amount if he failed to negotiate and purchase the said property. The accused also executed a voluntary undertaking on 10.05.2015 and admitted his liability. For the purpose of security, the accused also executed three promissory notes to the value of Rs.15,00,000/- each and also issued three post dated cheques for a sum of Rs.15,00,000/- each. When the said cheques were presented for collection an