Burden of proof lies with the appellant to substantiate claims of coercion in dishonored cheque cases under Section 138.

ORDER

This criminal revision has been preferred against the judgment passed in Crl.A.No.4 of 2020 dated 11.11.2020 on the file of the learned VI Additional Sessions Judge, CCC, Chennai thereby confirming the conviction and sentence imposed by the trial court in CC.No.1507 of 2018 dated 13.12.2019 on the file of the learned Metropolitan Magistrate, FTC-II, Allikulam, Chennai for the offence punishable under Section 138 of NI Act.

2. The petitioner is the accused in the complaint lodged by the respondent for the offence punishable under Section 138 of NI Act alleging that the petitioner approached the respondent for short time business loan to the tune of Rs.10,00,000/-. He also promised to share profits to the respondent herein. Believing the said words, the respondent had transferred a sum of Rs.5,00,000/- on 15.06.2017 and another sum of Rs.5,00,000/- on 05.07.2017 through NEFT mode to the account of the petitioner. On receipt of the said amount, the petitioner shared profits to the tune of Rs.80,000/- till 13.07.2017. Thereafter, the petitioner failed to share the profits as if there was undertaking in favour of the respondent by the petitioner dated 05.10.2017 and also issued two cheques for a sum of Rs.5,00,000/- each dated 09.10.2017. On instruction, both the cheques were presented for collection and both were returned dishonoured with the endorsement 'funds insufficient'. After causing statutory notice, the respondent filed complaint.

3. On the side of the respondent, he had examined P.W.1 and marked Ex.P1 to Ex.P7. On the side of the petitioner, he had examined D.W.1 and D.W.2 and marked Ex.D1 to Ex.D4. On the basis of the oral and documentary evidence, the trial court found the petitioner guilty for the offences under Section 138 of NI Act and sentenced him to undergo simple imprisonment for a period of one year and also awarded compensation to the tune of cheque amount. Aggrieved by the same, the petitioner preferred appeal and the same was dismissed and confirmed the judgment of conviction and sentence imposed by the trial court, against which this criminal revision has been filed.

4. The learned counsel for the petitioner would submit that both the cheques were obtained by way of coercion and threatening, that too in the police station. Both the cheques were issued as security. Therefore, both the cheques were not issued for any legally enforceable debt. The petitioner had rebutted the presumption under Section 138 of NI Act by examining DW1 and DW2 and marking Ex.D1 to Ex.D4. Even then, the trial court and the appellate court convicted the petitioner for the offence punishable under of NI Act. The petitioner had shared profits till 13.07.2017. Thereafter, the petitioner failed to share profits as there was loss in the business due to a cyclone. In the meantime, the respondent lodged complaint. In the guise of enquiry on the complaint lodged by the respondent, the Inspector of Police, Choolaimedu Police Station detained the petitioner for several hours. During the enquiry, under threatening and coercion, two cheques were obtained from the petitioner. Therefore, both the cheques were not issued for any legally enforceable debt or liability. Further, a sum of Rs.10,00,000/- was remitted only during the course of business with the agreement of sharing profits in the ratio of 80:20. However, without considering the above facts and circumstances, both the courts have convicted the petitioner for the offence punishable under of NI Act.

5. Though notice was served, no one appeared on behalf of the respondent before this Court today either in person or through pleader.

6. Heard, the learned counsel appearing for the petitioner and perused the records produced before this Court.

7. On perusal of records