TMI Blog2017 (8) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... 16, Crl.M.P.Nos.98 and 99 of 2016 - - - Dated:- 17-5-2017 - V. Bharathidasan, J. For the Petitioner : Mr. C. Munusamy For the Respondent : Mr.S.Sathiaseelan ORDER The petitioner is an accused in C.C.No.87 of 2013 on the file of the learned Judicial Magistrate No.I, Dharmapuri. The respondent/complainant filed a private complaint against the petitioner for an offence under Section 138 of Negotiable Instrument Act. The Trial Court, convicted the petitioner/accused and sentencing him to undergo one year simple imprisonment and directed to pay the cheque amount of ₹ 9,50,000/- as compensation under Section 357(3) Cr.P.C., and in default of payment of compensation amount, the accused is directed to undergo simple imprisonment for a period of six months. Challenging the above said conviction and sentence, the petitioner filed an appeal in C.A.No.40 of 2013 on the file of the Principal District Court, Dharmapuri. The lower appellate Court dismissed the criminal appeal by confirming the conviction and sentenced imposed by the trial Court. Now, Challenging the same, the present criminal revision case has been filed. 2. The case of the respondent/complainant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.05.2004 in the name of one K.Sankar. Subsequently, using the cheque given by the petitioner in the year 2002, the present complaint has been filed. Apart from that since the respondent has demanded more interest, the petitioner has given a complaint against the respondent herein before the District Crime Branch, Dharmapuri on 30.11.2007 and based on that complaint, a crime was registered against the respondent for the offence under Section 420 IPC and Section 4 of Tamil Nadu Prohibition of Charging Exorbitant Interest Act. 4. In order to prove his case, the petitioner marked the complaint given by him against the respondent as Ex.D1 and the First Information Report was marked as Ex.D2. Notice sent by the respondent after the above complaint was marked as Ex.D3. The copy of account chit issued by the petitioner was marked as Ex.D4. Statement of Account issued by ICICI Bank was marked as Ex.D5. A letter issued by the Bank of India regarding statement of account as Ex.D6. Another letter issued by the Bank of India as Ex.D7, and the xerox copy of the cheque bearing Nos.498388 and 498389 in the name of one Sankar and Murugan was marked as Ex.D8. 5. Considering the above materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner relied upon the following Judgments:- 1. N.Sivasamy Vs. United Sun Associates, Rep. by its Partner R.K.Vasu and other reported in 2015 SCC Online Mad 8292. 2. M/s.Veera Constructions, rep. by its Managing Director and Others Vs. R.Karthick reported in CDJ 2015 MHC 4628. 3. V.Mangalavathi Vs. M.Ganesamorrthy reported in CDJ 2016 MHC 374. 4. V.M.Ravi Chellamuthu Vs. K.Logu @ Loganathan reported in CDJ 2016 MHC 1418. 5. M/s.Surana Surana Vs. Kamal Babbar reported in CDJ 2016 MHC 545. 8. Per contra, the learned counsel appearing for the respondent would contend that once the petitioner has admitted the cheque, there is a initial presumption against him that the cheque has been issued to discharge a legally enforceable debt and the petitioner failed to discharge the initial burden. Ex.D5 the statement of account filed by the petitioner is not at all admissible in evidence as authenticity of statement of account issued by the ICICI Bank was not proved. Apart from that even though the petitioner claims to have given 5 cheques in the year,2002, he has not proved that the said cheque was misused by the respondent by any acceptable evidence. Since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on the complainant to prove that there is a legally enforceable debt. Now the question is whether the petitioner/accused has rebutted the presumption mandated under Section 139 of Negotiable Instrument with any probable defence. 12. It is a case of the petitioner/accused that he never borrowed ₹ 9,50,000/- as alleged by the respondent. But, he has borrowed a sum of ₹ 2,25,000/- in the year,2002, at that time he has given five blank cheques to the respondent. Subsequently, he has repaid the above said amount with interest to the tune of ₹ 7,28,000/- and in order to discharge the said loan amount, he has mortgaged his property in Bank of India, Dharmapuri Branch. At that time he had issued 20 blank cheques to the respondent and using the above cheque, the respondent withdrawn a sum of ₹ 3,00,000/- on 17.05.2004, in the name of one A.Murugan and copy of the cheque issued by him was also marked as Ex.D7, and another sum of ₹ 1,90,000/- withdrawn on 18.05.2004, in the name of one K.Sankar and the copy of the cheque was marked as Ex.D8, the statement of account issued by the Bank of India, Dharmapuri, was marked as Ex.D6. Apart from that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any receipt for payment of huge amount of ₹ 9,50,000/-. In the absence of production of any such materials, only an adverse inference could be drawn against the respondent. In the above circumstances, in the absence of any evidence to prove the existence of a legally enforceable debt or liability, the petitioner cannot be found guilty for the offence under Section 138 of the Negotiable Instrument Act. 14. So far as the objection regarding the admissibility of Ex.D5 and D6 is concerned, the objection regarding admissibility of the document ought to be raised before such document is admitted in evidence before the trial Court. But, the petitioner did not raise any objection regarding the admissibility of the document, but only contended that the entries in Ex.D5 was not proved by acceptable evidence. The trial Court also considered the above objection and held that the above documents were not proved by evidence. Since the admissibility of the document was not raised at the time of marking the documents in evidence, it is not open to the petitioner to raise the admissibility at this stage. The Hon'ble Supreme Court, in R.V.E.VENKATACHALA GOUNDER Vs. ARULMIGHU VISWESARAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. The above judgment is only helping to the petitioner and no way helpful to the respondent case. 16. Another judgment relied on by the counsel for the respondent in VIJAY Vs. LAXMAN AND ANOTHER reported in 2013(1)MWN(Cr.) DCC 161 (SC), is relates to the presumption under Section 139 of the Negotiable Instrument Act. In the instant case, it has been held that the petitioner has rebutted the presumption by a probable defence. Hence, the above judgment also not helping the respondent. The other Judgments relied upon the learned counsel appearing fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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