When the issuance of a cheque and the signature thereon are not denied, the statutory presumption under Section 139 of the Negotiable Instruments Act applies, shifting the burden to the accused to prove the absence of a legally enforceable debt.

ORDER

This revision has been preferred as against the judgment passed in Crl.A.No.100 of 2018 dated 31.01.2019 on the file of the learned Additional District and Sessions Judge, Vellore, Vellore District, thereby reversed the findings of the acquittal order passed by the learned Judicial Magistrate, (Fast Track Court), Vellore, Vellore District, in CC.No.31 of 2012 dated 05.10.2012, for the offences punishable under Section 138 of Negotiable Instruments Act and convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act.

2.The petitioner is an accused in the complaint lodged by the respondent for the offence punishable under Section 138 of Negotiable Instruments Act, alleging that the petitioner had borrowed a sum of Rs.6,00,000/- on 07.04.2011 and agreed to repay the said amount altogether with interest at the rate of 24% per annum and also executed three promissory notes in favour of the respondent for a sum of Rs.2,00,000/- each. Thereafter, in order to repay the amount, the petitioner had issued three cheques for a sum of Rs.2,00,000/- each. When one cheque was presented for collection, the same was returned with the endorsement “funds insufficient”. After due notice, the respondent lodged a complaint and the same has been taken cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act.

3.In order to prove the complaint, the respondent had examined P.W.1 and P.W.2 and marked Exs.P1 to P11. On the side of the accused, no document was marked and no witness was examined.

4.On perusal of oral and documentary evidence, the Trial Court found the petitioner not guilty and acquitted him. Aggrieved by the order of the Trial Court, the respondent preferred an appeal and the Appellate Court reversed the findings of the Trial Court and convicted the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and to pay a sum of Rs.2,00,000/- as compensation to the respondent. Aggrieved by the said order, the present revision.

5.The learned counsel for the petitioner submitted that the Trial Court rightly acquitted the petitioner on the ground that the respondent failed to prove that the cheque was issued for legal enforcible debt. Ex.P8, pro note executed by the petitioner did not prove that the cheque was issued for a legal enforcement. Further, Ex.P11, the Income Tax return verification for the assessment year 2012-2013 did not contain the petitioner’s name in order to accrue the amount which was allegedly lent in favour of the petitioner. Therefore, the petitioner is not liable to be held for the offence under Section

138 of Negotiable Instruments Act.

6.The learned counsel for the respondent submitted that the Appellate Court has rightly found the petitioner guilty and convicted him for the offence punishable under Section 138 of the Negotiable Instruments Act and prayed for dismissal of this revision.

7.Heard the learned counsel on either sides and perused the materials on record.

8.On perusal of the records and also the submissions made by the counsel, it revealed that the petitioner had borrowed a sum of Rs.6,00,000/- by execution of three promissory notes each for a sum of Rs.2,00,000/-. Thereafter, in order to repay the said amount, he issued three cheques for a sum of Rs.2,00,000/- each and when one cheque was presented for collection, the same was returned for the reason “funds insufficient”. After receipt of the statutory notice, though the petitioner issued reply notice, the petitioner f