TMI Blog2017 (5) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... ad failed to rebut the initial presumption under Section 139 of Negotiable Instruments Act. Considering all the above materials, both the court belows had convicted the petitioner and find no illegality or irregularity in the judgment of the courts-below, hence, the revision fails and is liable to be dismissed. - CRL.R.C.NO.1579 OF 2016, And CRL.M.P.NOS.12912 & 12914 OF 2016 - - - Dated:- 24-4-2017 - MR. V.BHARATHIDASAN, J. For The Petitioner : Mr.R.Johnsatyan For The respondent : Mr. D.J.Venkatesan ORDER 1. The sole accused in C.C.No.1934 of 2006 on the file of the IV Fast Track Metropolitan Magistrate, George Town, Chennai is the revision petitioner herein. The respondent/complainant, filed a private complaint against the petitioner for the offence under Section 138 of Negotiable Instrument Act. The trial Court, on appreciation of oral and documentary evidence, convicted the petitioner and sentenced her to undergo simple imprisonment for 2 years and also to pay a compensation of ₹ 13,98,537/- under Section 357(3) Cr. P.C., in default, to undergo simple imprisonment for 6 months. Challenging the same, the petitioner filed an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On appreciation of oral and documentary evidence, the trial court convicted the petitioner/accused holding that since the petitioner/accused had admitted the cheque, there is a presumption of existence of legally enforceable debt or liability and that initial presumption was not rebutted by the petitioner/accused with any probable defence. Challenging the same, the petitioner had filed an appeal and the lower appellate court also confirmed the conviction and sentence of the petitioner/accused and dismissed the appeal. Chellenging the same, the present revision has been filed. 5. Mr. R. Johnsathyan, learned counsel appearing for the petitioner would contend that admittedly, there is a business transaction between the petitioner/accused and the respondent/complainant, it is also admitted by the respondent/complainant that up to May 2003, all the dues have been discharged by the petitioner, and it is also admitted that the petitioner used to give cheques and the respondent also was withdrawing the amount periodically from her account. In the above circumstances, the respondent ought to have produced his account book or ledger to establish that there is a legally enforceable deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption by raising any probable defence. First of all, for the legal notice issued by the respondent, the petitioner has not sent any reply, but subsequent to the filing of the complaint, she has issued a notice to the respondent, which was also marked as Ex.P.8. In the notice, she did not say anything about her liability, but she has made a claim of ₹ 55,80,000/- from the respondent. Even in the said notice, she has not stated anything about issue of cheque under alleged threat or coercion by the respondent and the notice is silent regarding the cheque issued by the petitioner. Apart from that, the disputed cheque is not the only cheque issued by the petitioner, there are five more cheques issued by the petitioner to the respondent, which are all of the year 2004-2005, and all the cheques presented by the respondent were returned for various reasons, which were also marked as Ex.P.6 and Ex.P.7. Hence, the contention of the petitioner that only this respondent has the liability to her and there is no necessity for her to issue the cheques to the respondent/complainant cannot be accepted. In order to substantiate her defence, the petitioner neither examining herself as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused under Section 138 of Negotiable Instruments Act, but she did not mention anything about the issuance of the disputed cheque to the respondent/complainant, or any threat or coercion by the respondent/complainant. Even in the cross examination of the complainant/P.W.1, the petitioner did not try to establish that the cheque has been forcibly obtained by the respondent/complainant and there is also a material alteration in the cheque, from the above, it could be seen that the petitioner/accused having admitted that cheque, failed to establish that the cheque has been forcibly obtained by the respondent/plaintiff, and there is no legally enforceable debt. 11. Section 138 of Negotiable Instruments Act has 3 ingredients, viz., (i) that there is a legally enforceable debt (ii) that the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability, which presupposes a legally enforceable debt; and (iii) that the cheque so issued has been returned due to insufficiency of funds. The proviso appended to the said Section provides for compliance of some legal requirements before a complaint can be acted upon by a court of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non- existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. In yet another judgment, the Hon'ble Supreme Court of India in Rangappa ( supra ) held as follows: In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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