The complainant must demonstrate financial capacity when challenged by the accused in a Section 138 NI Act case, otherwise the presumption shifts responsibility.

ORDER

This Criminal Revision Case has been preferred against the judgment dated 03.01.2023 passed in C.A.No.22 of 2022 by the learned III Additional District and Sessions Court, Kallakurichi, Villupuram, thereby confirming the judgment dated 16.06.2022 passed in C.C.No.275 of 2016 by the learned Judicial Magistrate, Fast Track Court, Kallakurichi.

2. The petitioner is the accused in the complaint lodged by the respondent/complainant for the offence punishable under Section 138 of Negotiable Instruments Act (in short 'the NI Act') alleging that the petitioner borrowed a sum of Rs.27,00,000/- on 12.08.2015 as a hand loan for his business and family expenses and on the same day, assured to repay the amount within 15 days and to discharge the said liability, he issued a post dated cheque bearing No.099505 dated 12.08.2015 drawn on Indian Bank, Kallakurichi for a sum of Rs.27,00,000/- in favour of the respondent. When the said cheque was presented on 31.08.2015 for collection, the same was returned on 15.09.2015 with an endorsement “Funds Insufficient”. Therefore, after causing statutory notice, the respondent has filed a complaint u/s 138 of NI Act on the file of Judicial Magistrate, Fast Track Court, Kallakurichi in C.C.No.275 of 2019. 3. After elaborate discussions, the trial court convicted the petitioner u/s 138 of NI Act and sentenced him to undergo rigorous imprisonment for one year and to pay the cheque amount of Rs.27,00,000/- within three (3) months to the respondent, in default to pay the said amount, sentenced to undergo simple imprisonment for a further period of two (2) months. Challenging the same, the petitioner has filed an appeal in C.A.No.22 of 2022 before the III Additional District and Sessions Court, Kallakurichi, Villupuram and the learned Sessions Judge, vide judgment dated 03.01.2023, dismissed the appeal by confirming the conviction and sentence passed by the learned Judicial Magistrate, Fast Track Court, Kallakurichi. Aggrieved by the same, the present revision is filed.

4. The learned counsel for the petitioner submits that the petitioner had categorically rebutted the presumption by marking Ex.D.1 to Ex.D.3. Though the petitioner did not examine any witnesses, he rebutted the presumption u/s 118 and 139 of NI Act. Even then, the Trial Court and the Appellate Court mechanically convicted the petitioner. Further, petitioner was not served with a notice as contemplated u/s 138(b) of NI Act. The respondent has not proved that he had lent a sum of Rs.27 lakhs to the petitioner, that too, without any security. Therefore, the respondent failed to prove his case that he had source of income to lend such a huge amount. He also did not disclose his income tax returns to show that the amount, which was lent in favour of the petitioner was accounted with his income tax returns. Further, on the date of borrowal, the respondent did not receive any documents for security. Therefore, the respondent failed to prove that the cheque was issued for legally enforceable debt. In support of his contentions, he relied upon the order of this Court in Crl.R.C.No.599 of 2013 dated 11.03.2021 in the case of C.Ponnusamy Vs. M.Anbu, and submitted that this Court had held that when the accused rebutted the presumption satisfactorily by probablising valid defence, the burden shifted to the complainant. However, the complainant failed to prove that the cheque was issued for legally enforceable debt. Accordingly, he prays for allowing the revision. 5. Per contra, learned counsel for the respondent would submit that on receipt of the statutory notice, the petitioner did not even issue any reply notice to rebut the initial presumption arise u/s 139 of NI Act. The respondent had