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TMI Blog2020 (2) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... , for which reply notice was issued by the petitioner. Since the said amount was not paid inspite of notice, proceedings u/s 138 of the Negotiable Instruments Act was instituted in C.C. No.89 of 2005 before the Judicial Magistrate, Avinashi. 3. The trial court, caused summons to the accused/petitioner and after trial, the trial court convicted the accused and sentenced her to simple imprisonment for a period of one year together with a fine of Rs. 5,000/-. Against the said conviction, the petitioner herein preferred appeal before the Addl. District & Sessions Court, Coimbatore @ Tirupur in C.A. No.61/09, which confirmed the conviction and sentence passed by the trial court. Assailing the said judgment of conviction and the consequent sentence, the present revision has been preferred by the petitioner/accused. 4. Learned counsel appearing for the petitioner stressed that though the lower appellate court has accepted that there are many discrepancies not only in the evidence, but has also held that certain crucial facts have not been proved in a manner known to law by the complainant, yet, thrusting the burden on the shoulder of the petitioner/accused, the lower appellate court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent/complainant strenuously submitted that the findings arrived at by the court below, being concurrent in nature, unless, a strong case, both on facts and law is made out by the petitioner, this Court should be circumspect in interfering with the concurrent findings rendered by the courts below. It is the further submission of the learned counsel for the respondent that the signature of the petitioner in the cheque has not been disputed and inspite of causing of statutory notice, except for replying to the notice stating that no legally enforceable right exists, the petitioner has not placed any materials to repudiate the said plea of the respondent. It is the further submission of the learned counsel for the petitioner that had the petitioner been really truthful, the petitioner ought to have entered the box and given evidence disputing the claim of the respondent and in the absence of the same, the findings arrived at by the courts below do not call for any interference, as the findings are well considered on the basis of the materials available on record. 6. This Court paid its careful consideration to the rival contentions advanced on behalf of the petitioner and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on." The Court, however, further observed that : "27.... it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant- accused cannot be expected to discharge an unduly high standard of proof." The Court further observed that 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. 25. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own.If however, the accused/drawer of a cheque in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lawful debt, the offence would be made out. Therefore, the cases arising out of stop-payment situation where the drawer of cheques has sufficient funds in his account and yet stops payment for bona fide reasons, the same cannot be put on a par with other variety of cases where the cheque has bounced on account of insufficiency of funds or where it exceeds the amount arranged to be paid from that account, since Section 138 cannot be applied in isolation ignoring Section 139 which envisages a right of rebuttal before an offence could be made out under Section 138 of the Act as the legislature already incorporates the expression "unless the contrary is proved" which means that the presumption of law shall stand and unless it is rebutted or disproved, the holder of a cheque shall be presumed to have received the cheque of the nature referred to in Section 138 of the NI Act, for the discharge of a debt or other liability. Hence, unless the contrary is proved, the presumption shall be made that the holder of a negotiable instrument is holder in due course." (Emphasis Supplied) 10. From the above proposition of law adumbrated by the Hon'ble Supreme Court what unequivocally follows th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioner is that a similar case in and around the same period of time was initiated by the complainant against the husband of the petitioner with regard to receipt of a loan amount of Rs. 1,95,000/-, which has ended in dismissal. In the said judgment, the lower appellate court has adverted to the amounts involved and has held that the amount covered in the present case has been accounted for in the case as against the petitioner's husband as well. In the above circumstances, it is the submission of the learned counsel for the petitioner that once the amount has been taken into consideration in the case relating to the petitioner's husband, who has, after trial been acquitted of the offence, necessarily, the case against the petitioner also deserves to be dismissed for the simple reason that the amount, alleged to have been borrowed by the petitioner has been accounted for in the parallel case initiated against the petitioner's husband. 14. There is no dispute that a case u/s 138 of the Negotiable Instruments Act was pursued against the petitioner's husband, which ultimately ended in acquittal and the same has attained finality as no appeal/revision has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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