ORDER

(This case has been heard through video conference)

This Criminal Revision has been filed challenging the Judgement dated 24.06.2015 passed by the learned I Additional Sessions Judge, Erode, in C.A.No.8 of 2015 confirming the Judgement dated 18.12.2014 passed by the learned Judicial Magistrate (Fast Track Court No.II) Erode in S.T.C. No.607 of 2013 finding the accused guilty of offence under Section 138 of Negotiable Instruments Act and convicted and sentenced him to undergo one year Simple Imprisonment and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo Simple Imprisonment for one month.

2. For the sake of convenience, the petitioner and the respondent will be referred to as accused and complainant respectively.

3. The case of the complainant is that on 08.05.2013, the accused had borrowed a sum of Rs.3,60,000/- from the complainant and towards the discharge of the liability, the accused had issued a post dated cheque dated 08.07.2013 bearing No.082351 drawn at HDFC Bank, Erode Branch (Ex.P1). Thereafter, the cheque was presented for collection in the account of the complainant on 08.07.2013 whereas, it had been returned on the same day stating reason “insufficient funds” and the return memo is Ex.P.2. Pursuant to which, the complainant had issued a statutory notice on 10.07.2013 (Ex.P.3) which was served on the accused on 11.07.2013 and the registered post acknowledgement is Ex.P.4. After the receipt of the notice, the accused neither sent any reply nor repaid the amount. Thereby, the complainant initiated a prosecution in S.T.C.No.607 of 2013 under Section 138 of Negotiable Instruments Act (for brevity “the N.I. Act”)

against the accused.

4. On appearance, the accused was questioned under Section 251 Cr.P.C. and he denied the accusations.

5. The complainant examined himself as PW.1 and marked Exs.P.1 to Ex.P.4.

6. When the accused was questioned under Section 313 Cr.P.C. on the mitigating circumstances against him, he denied the same.

7.After considering the evidences on record on either side, the trial Court by Judgement dated 18.12.2017 in S.T.C. No.607 of 2013 found the accused guilty and convicted him for offence under Section 138 Cr.P.C. and sentenced him to undergo one year Simple Imprisonment and to pay fine of Rs.5,000/- and in default to undergo, one month Simple Imprisonment. Challenging the conviction and sentence, the accused had filed C.A.No.8 of 2015 and the appellate Court by Judgement dated 24.06.2015 had dismissed the appeal confirming the conviction and sentence imposed by the trial Court.

8. Against the dismissal of the Judgement in C.A.No.8 of 2015 dated 24.06.2015, the present revision has been filed under Section 397 read with 401 Cr.P.C.

9. The learned Counsel fort the accused would submit that the accused was working in a company namely Best Share Money Trading and one Nandhakumar, the relative of the complainant had deposited in the company. Thereafter, when the company had cheated its depositors, the said Nandhakumar and the complainant had come to the company where the accused was working and under threat had taken the cheque from him by force and had misused the same. She would submit that though the accused had not sent any reply, he had by cross examining the complainant, had proved that the complainant was not having financial capacity to pay such a huge amount of Rs.3,60,000/- and thereby, the accused had rebutted the presumption by preponderance of probability, whereas the Courts below have failed to take into consideration that the complainant was not having financial capacity to lend such a huge amount of Rs.3,60,000/- and have wrongly convicted the accused and she would pray for allowing the revision and to set aside the orders of both the Courts below.

10. Per contra, the learned Counsel for the complainant would submit that it is a case where the complainant has proved his case by proper evidence. She would submit that though it is the contention of the accused that