ORDER

This Criminal Revision has been filed to set aside the judgment in C.A. No.96 of 2017 dated 29.08.2018 on the file of the II Additional District and Sessions Court, Tuticorin confirming the judgment and sentence passed in C.C. No.343 of 2012 dated 30.01.2017 on the file of the Fast Track Court, Magisterial level, Tuticorin.

2. Before the trial Court the respondent filed complaint under Section 138 of the Negotiable Instrument Act and the same was taken on file in C.C. No.343 of 2012. After trial, the trial Court had convicted the accused for the offence under Section 138 of the Negotiable Instrument Act and sentenced to undergo one year simple imprisonment and directed to pay the cheque amount of Rs.2,00,000/- as compensation to the complainant within a period of one month indefault to undergo one month simple imprisonment on 30.01.2017 Against which the accused has preferred an appeal before the learned Principal District and Sessions Judge, Thoothukudi and the same was made over to the learned II Additional District and Sessions Judge, Thoothkudi and the learned II Additional District and Sessions Judge, Thoothkudi has dismissed the appeal on 29.08.2018 confirming the judgment of the trial Court.

3. As against the said judgment and conviction, the present revision has been filed on the following grounds:

a) the trial Court ought to have considered that Ex.P.1 cheque which is typewritten is not a valid instrument under Negotiable Instrument Act.

b)the complainant has not proved the source of income to lend money to the petitioner.

b)Ex.P.3 legal notice is not served to the petitioner. The cheque was not issued inorder to discharge the legally enforceable debt, thereby the offence under Section 138 of the Negotiable Instrument Act will not arise.

4. The learned counsel appearing for the petitioner would contend that the respondent has filed a cheque case before the trial Court and the same was taken on file C.C. No.343 of 2012 and then after full trial the trial Court had convicted the accused under Section 138 of the Negotiable Instrument Act and sentenced to undergo one year simple imprisonment and directed to pay the cheque amount of Rs.2,00,000/- as compensation to the complainant within a period of one month indefault to undergo one month simple imprisonment. The Courts below failed to consider that the complainant has no source of income to pay the above said cheque amount and inorder to prove the case the complainant has to adduce sufficient evidence but no documents were produced to prove the source of income of the complainant. The petitioner has not received any legal notice. Cheque was not issued for discharging any legally enforceable debt. These aspects have not been considered by the trial Court and hence the judgment and conviction passed by the Courts below are liable to be set aside by allowing this appeal.

5. The learned counsel appearing for the respondent would contend that the accused have not denied the execution of cheque and the complainant is a fisherman and he is having the capacity to give the cheque amount of Rs.2,00,000/- and the accused admitted the signature in the cheque. In this case the petitioner was examined as P.W.1 and marked Exhibits Ex.p.1 and P.2 and on the side of the defence no one was examined and no document was marked. P.W.1 categorically deposed about the issuance of cheque and presentation for collection, thereby the petitioner has proved the case. Per contra, the accused has not examined any witnesses to rebut the presumption under Section 139 of the Negotiable Instrument Act.

Therefore, the revision petition is liable to be dismissed.

6. Heard both sides and perused the materials available on record.

7. Upon hearing both sides and perusing the judgments of both the Courts and the grounds of appeal, the point for determination in this petition is i) whether the judgment and conviction passed in C.A. No.96 of

2017 dated 29.08.2018 on the file of the II Additional District and Session