ORDER

This Criminal Revision case has been filed against the judgment and order passed in Crl.A.No.119 of 2017 by the learned Additional Sessions Judge, Magalir Needhimandram, (Fast Track Mahila Court), Erode, dated 31.08.2017, confirming the judgment and order passed by the learned Judicial Magistrate No.I, Gopichettipalayam in C.C.No.2 of 2008, dated 08.05.2017, convicting the petitioner for offence under Section 138 of the Negotiable Instruments Act and sentencing him to undergo two years simple imprisonment.

2.The respondent/complainant preferred a private complaint against the petitioner on the ground that the petitioner borrowed a sum of Rs.5,00,000/- (Rupees Five Lakhs only) on 02.10.2007 and in discharge of this liability, the petitioner issued a cheque (Ex.P1), dated 02.11.2007 for a sum of Rs.5,00,000/- (Rupees Five Lakhs only). When the respondent/complainant presented the cheque for clearance, it was returned with an endorsement "Funds Insufficient". The return memo was marked as Ex.P2. Thereafter, the respondent issued a statutory notice (Ex.P3) and on receipt of the same, the petitioner gave a reply notice (Ex.P6) denying the liability. As a result, the complaint came to be filed against the petitioner.

3.The Trial Court after appreciating the oral and documentary evidence, came to a conclusion that the legal presumption under Section 139 of the Negotiable Instruments Act must go in favour of the complainant and it was held that the petitioner did not rebut the presumption and accordingly, the Trial Court convicted and sentenced the petitioner for offence under Section 138 of the Negotiable Instruments Act.

4.Aggrieved by the above judgment and order passed by the Trial Court, the petitioner filed an appeal and the same was taken on file in Crl.A.No.119 of 2017. The Appellate Court on reappreciation of the evidence and after considering the findings of the Trial Court, found that there is no ground to interfere with the judgment of the Trial Court and accordingly, the Criminal Appeal came to be dismissed by judgment dated 31.08.2017. Aggrieved by the same, this criminal revision case has been filed before this Court.

5.Heard Mr.D.Rajagopal, learned counsel appearing on behalf of the petitioner and Ms.H.Kavitha, learned counsel appearing on behalf of the respondent.

6.The learned counsel for the petitioner mainly raised two grounds in this case. The first ground that was raised by the learned counsel for the petitioner is that the respondent did not have the financial wherewithal to lend a sum of Rs.5,00,000/- (Rupees Five Lakhs only) to the petitioner and there was not even an iota of evidence to substantiate the financial status of the respondent. It was therefore submitted that both the Courts below did not consider this issue in a proper perspective. The next ground that was raised by the learned counsel for the petitioner is that there was no legally enforceable debt/liability in this case, since the petitioner never borrowed any amount from the respondent and he had not issued any cheque in favour of the respondent. The learned counsel therefore submitted that both the Courts below had wrongly invoked Section 139 of the Negotiable Instruments Act even without the respondent establishing the legally enforceable debt/liability.

7.Per contra, the learned counsel for the respondent submitted that the petitioner had taken various defence at each stage and the same was properly considered by both the Courts below and ultimately, the findings were rendered and hence, there is no ground to interfere with the conviction and sentence passed against the petitioner.

8.This Court has carefully considered the submissions made on either side and also the materials available on record.

9.It is too well settled that the presumption under Section 139 of the Negotiable Instruments Act can be rebutted by the accused through preponderance of probabilities. Therefore, it depends upon the specific defence taken by an accused in a given cas