ORDER

This Criminal Revision Case has been preferred challenging the judgement of the learned III Additional District and Sessions Judge, Salem, dated 19.12.2014 passed in C.A.No.10 of 2014, confirming the judgement of the learned Judicial Magistrate IV, Salem, dated 09.12.2013 passed in STC.No.467 of 2010.

2. This case has arisen out of a private complaint filed by the respondent/complainant on the allegation that the revision petitioner has availed a loan of Rs.1,50,000/- from him on 10.12.2009 and executed a promissory note – Ex.P1. In order to discharge the above debt, he has issued a cheque dated 10.01.2010 drawn in Karur Vysya Bank, Salem Branch. When the cheques were presented for collection with the respondent's Indian Overseas Bank, Seelanaickanpatty Branch on 13.05.2010, it was dishonoured on 14.05.2010 for the reason of funds insufficient. After having issued the statutory notice, the respondent/complainant has filed the private complaint.

3. After the case was taken on file, on the side of the respondent/complainant, the complainant examined himself as P.W.1 and Exs.P1 to P10 were marked. On the side of the accused, two witnesses were examined as D.W.1 and D.W.2 and Exs.D1 to D3 were marked.

4. After the conclusion of the trial and on consideration of the evidence available on record, the learned trial Judge found the accused guilty for the offence under Section 138 of Negotiable Instruments Act and convicted and sentenced him to undergo one year Rigorous Imprisonment and imposed a fine of Rs.5,000/- in default to undergo one month imprisonment. The appeal preferred by the accused in C.A.No.10 of 2014 was also dismissed by the learned III Additional District and Sessions Judge on 19.12.2014. Aggrieved over that, the accused has preferred this present revision case.

5. It is submitted by the learned counsel for the revision petitioner that the cheque in question was not issued for any legally enforceable debt as claimed by the complainant; his wife had issued a cheque in favour of one Murugabupathy – D.W.1; D.W.1 sent a notice to his wife through Ex.D1 by stating that the cheque was dishonoured; subsequent to that, Murugabupathy did not take any action but he was in collusive with the defacto complainant and instrumental in filing this case against the accused. The cross-examination of P.W.1 would also show that he was doing money lending business without license; he is not even maintaining accounts; the petitioner/accused had established the preponderance of probability in his favour and rebutted the initial presumption under Section 139 of N.I. Act.

6. The learned counsel for the defacto complainant submitted that the accused has not discharged his reverse burden; the relevancy of the alleged transaction between D.W.1 and the wife of the accused in this case was also not established; since the execution of the cheque was not in dispute, the respondent/complainant is entitled to the presumption under Section 139 of N.I. Act in his favour; the learned trial Judge and the First Appellate Judge have appreciated the evidence in a correct perspective and it does not suffer from any infirmity and it does not warrant any interference.

7. Heard learned counsel for the petitioner and learned counsel for the respondent.

8. Point for consideration :-

Whether the conviction and sentence of the accused for the offence under Section 138 of Negotiable Instruments Act by the learned Judicial Magistrate IV based on the materials available on record is fair and proper?

9. The signature of the respondent/complainant on Ex.P1 – promissory note and Ex.B2 – cheque was not disputed. If the executant of the cheque admits his signature on the cheque, the initial presumption should be drawn in favour of the holder of the cheque that the cheque was issued for discharging a legally enforceable debt. But the said initial presumption is rebuttable and the reverse burden is on the accused to prove the contrary.

10. In the case in hand also, the revision