O R D E R

This Criminal Revision has been preferred challenging the judgment of the learned First Additional District and Sessions Judge, Erode dated

20.04.2018 made in C.A.No.259 of 2017 confirming the judgment of the learned Judicial Magistrate-I, Erode dated 24.07.2017 made in S.T.C.No.1373 of 2010.

2. This case has arisen out of a private complaint filed by the respondent on the allegation that on 26.09.2010, the revision petitioner had borrowed a sum of Rs.4,00,000/- from the respondent and issued a cheque for Rs.4,00,000/- dated 26.10.2010 drawn on ICICI Bank, Coimbatore Branch towards discharge of the loan. When the cheque was presented for collection with the City Union Bank, Erode on 26.10.2010, the same was returned as “Account closed”. After having issued the statutory notice and after complying the legal mandates, the respondent filed the private complaint against the petitioner for punishing him under Section 139 read with 142 of Negotiable Instruments Act.

3. After the case was taken on file, the accused was questioned. He pleaded innocence and claimed to be tried.

4. During the course of the trial, on the side of the complainant, he himself was examined as PW1 and marked 5 documents as Exs.P1 to P5. On the side of the defence, 4 witnesses have been examined and 4 documents were marked.

5. At the conclusion of trial and after considering the materials available on record, the learned trial Judge found the accused guilty for the offence under Sections 138 Negotiable Instruments Act and convicted and sentenced him to undergo Rigorous Imprisonment for One Year and to pay a fine of Rs.5,000/- in default Simple Imprisonment of Three Months. The appeal preferred by the accused in C.A.No.259 of 2017 was also dismissed on 20.04.2018. Aggrieved over that the accused has preferred the present revision.

6. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. Perused the entire materials available on record.

7. The learned counsel for the revision petitioner/accused submitted that the Courts below have not properly appreciated the evidence available on record and convicted the accused; the applicability of Sections 118 and 139 of Negotiable Instruments Act was also not properly done by the Courts below and hence, this Revision has to be allowed. The evidence of DWs1 to 4 would show that the Cheque (Ex.P1) came into the custody of the complainant only through illegal means and that was omitted to be appreciated by the Courts below.

8. The learned counsel for the respondent submitted that the revision petitioner/accused did not deny the execution of the cheque and hence, the complainant is entitled to the initial presumption under Sections 118 and 139 of Negotiable Instruments Act. As per the said presumption, if the execution is admitted, it has to be presumed that the cheque was given for a legally enforcible debt or liability. The Courts below have rightly appreciated the evidence and found the accused guilty.

9. Point for consideration:-

Whether the finding of the guilt of the accused for the offence under Section 138 NI Act by the learned Sessions Judge based on the materials available on record is fair and proper?

10. The execution of the cheque by the petitioner/accused is not in dispute. His only contention is that he did not avail any loan from the respondent/complainant as alleged by him.

11. It is needless to point out that once the execution of cheque is admitted, the mandatory initial presumption under Sections 118 and 139 would go in favour of the complainant. As per the said presumption, it has to be presumed that the cheque has been issued only for a legally enforcible debt or liability. It is not the case of the complainant that the respondent did not have financial wherewithal to lend him a loan of Rs.4,00,000/- as alleged by him. Though the initial presumption as stated above lies in favour of the complainant, it is always open to the accused to rebut the same by producing