ORDER

This Criminal Revision has been filed as against the Judgment dated passed in C.A.No.47 of 2016 on the II Additional District and Sessions Judge, Tirupur, thereby confirming the judgment dated 26.11.2015 passed in S.T.C.No.136 of 2012 on the learned Judicial Magistrate (Fast Track Court), Tiruppur, thereby convicted the petitioner for the offence punishable under Section 138 of Negotiable Instrument Act.

2. The petitioners are accused in the complaint lodged by the respondent for the offence punishable under Section 138 of Negotiable Instrument Act. The case of the complainant is that the petitioners borrowed a sum of Rs.1,00,000/- on 04.01.2010. In order to repay the said amount, the petitioners issued a cheque to the tune of Rs.1,00,000/-. When the cheque was presented for collection, the same was returned with an endorsement “fund insufficient”. Immediately, the respondent caused statutory notice and lodged a complaint.

3. On the side of the complainant, he examined P.Ws.1 & 2 and marked Exs.P1 to P7. On the side of the petitioners, they examined D.Ws.1 & 2 and marked Exs.D1 to D4.

4. On perusal of the oral and documentary evidence, the trial Court found the petitioners guilty for the offence punishable under Section 138 of Negotiable Instrument Act and the second petitioner was sentenced to undergo one year simple imprisonment and to pay a fine of Rs.1,000/- each in default to undergo one month simple imprisonment by the second petitioner. Aggrieved by the same, the petitioners preferred an appeal and the same was dismissed and the order of the Trial Court was confirmed.

5. The petitioners raised grounds that the respondent had no source of income to lend the huge amount of Rs.1,00,000/-. Except the cheque, the respondent did not produce any evidence to show that he had source of income to lend the money. The petitioners categorically rebutted the presumption by examination of D.Ws.1 and 2. However, both the Courts below failed to consider the same and convicted the petitioners. The second petitioner and one Tamilarasan are partners and both are having joint account in the name of M/s.Arasu Narayana Apparels and both are having power to operate the bank account. Therefore, the cheque will be valid only if both signs in a cheque on behalf of M/s.Arasu Narayana Apparels. The Trial Court convicted the petitioners only on the ground that on receipt of the statutory notice, the petitioners failed to issue any reply notice.

6. A perusal of the records reveals that the petitioners borrowed a sum of Rs.1,00,000/- from the respondent. In order to repay the same, they issued a cheque. When, the cheque was presented for collection, the same was returned with an endorsement “funds insufficient”. The respondent caused statutory notice and the same was duly received by the petitioners. The petitioners failed to disprove the case of the complainant and failed to rebut the presumption as contemplated under Section 139 of Negotiable Instruments Act. Though, the petitioners had raised ground that the respondent had no source of income to lend the money to the tune of Rs.1,00,000/-, the petitioners did not even issue any reply to state that the respondent had no source of income. That apart, the petitioners never denied the issuance of cheque and never disputed the signature found in the cheque. Therefore, the respondent proved his initial burden as contemplated under Section 139 of Negotiable Instruments Act. If at all the petitioners intended to disprove the case of the respondent, they ought to have rebut the same by probable evidence.

7. Admittedly, the petitioners failed to rebut the presumption as contemplated under Section 139 of Negotiable Instrument Act. Therefore, it presumed that the cheque was issued only for a legally enforceable debt and the Courts below rightly convicted the petitioners for the offence punishable under Section 138 of Negotiable Instrument Act. Hence, this Court finds no infirmity or illegality in the order pa