Accused cannot rebut statutory presumption under Sections 118 and 139 of Negotiable Instruments Act without entering witness box.

ORDER

This Criminal Revision Case has been filed against the Judgment dated

18.04.2023 passed in C.A.No.7 of 2022 on the file of the Additional District and Sessions Judge, Coimbatore, thereby confirming the order of conviction and sentence imposed by the Judicial Magistrate Court No.II, Pollachi, in S.T.C.No.2069 of 2016, dated 22.12.2021, for the offence punishable under Section 138 of the Negotiable Instruments Act.

2. The petitioner is the accused in the complaint lodged by the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. The case of the respondent is that the accused borrowed a sum of Rs.5,00,000/- from the respondent for his urgent needs and promised to repay the same with interest at the rate of 12% per annum. However, the accused failed to repay the said amount. After repeated requests, the accused issued a cheque for a sum of Rs.5,00,000/- towards partial discharge of the principal amount. When the said cheque was presented for collection, the same was returned dishonoured with the endorsement “Funds Insufficient”. After causing a statutory notice, the respondent initiated proceedings under Section 138 of the Negotiable Instruments Act and the same has been taken cognizance by the Trial Court.

3. In order to prove the complaint, the respondent had examined P.W.1 and marked Exs.P1 to P5. On the side of the accused, no witnesses were examined and no documents were marked.

4. On perusal of the oral and documentary evidence, the Trial Court found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and also awarded compensation to the cheque amount with interest at the rate of 5% per annum commencing from the date of complaint till the date of actual payment, failing which, the accused shall undergo default sentence of simple imprisonment for two months. Aggrieved by the same, the accused preferred an appeal. However, the Appellate Court dismissed the appeal and confirmed the order of conviction and sentence imposed by the Trial Court. Hence, the present Criminal Revision Case has been filed.

5. The learned counsel appearing for the petitioner/accused submitted that though the accused admitted his signature and issuance of the cheque, he categorically rebutted the presumption during the cross-examination of P.W.1. Even then, the respondent failed to prove that the cheque was issued for legally enforceable debt. Despite the same, both the Courts below convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. He further submitted that, out of the cheque amount of Rs.5,00,000/-, so far the accused paid a sum of Rs.1,00,000/- and sought for three weeks time to settle the remaining amount.

6. Per contra, the learned counsel appearing for the respondent submitted that the accused borrowed a sum of Rs.5,00,000/- on 15.04.2016 and also agreed to pay interest at the rate of 12% per annum. Further, the accused admitted the signature and also issuance of the cheque. In order to rebut the presumption, the accused did not enter the witness box and nothing else in the cross-examination of P.W.1. Therefore, the Trial Court rightly convicted the accused and the Appellate Court rightly confirmed the order of conviction and sentence imposed by the Trial Court. Insofar as the interest is concerned, the Trial Court awarded compensation to the cheque amount with interest at the rate of 5% per annum payable by the accused. Therefore, the concurrent findings of the Trail Court as well as the Appellate Court do not warrant any i