TMI Blog2023 (10) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... ], are not applicable in the facts of the present case. On careful reading of the judgment, it is clear that once the accused admitted the issuance of cheque or signature found in the cheque, the presumption under Section 139 of Negotiable Instruments Act would operate and the burden was on the accused to disprove the cheque or existence of legally enforceable debt - in the case on hand also, the accused admitted the issuance of cheque, signature of cheque and thereby, he has to disprove the cheque and his liability but he failed to prove the same. Thereby, the aforesaid case law will squarely applicable to the present facts of the case. In this case, the oral and documentary evidences and witnesses clearly established the case of the complainant and the defence theory put forth by the accused was not proved and thereby, the trial Court as well as the appellate Court came to the fair conclusion and convicted the petitioner/accused for the offence under Section 138 of Negotiable Instruments Act. There is no infirmity found in the judgment of the Courts below and thereby this Court warrants no interference. The Criminal Revision Petition is dismissed. - THE HONOURABLE MR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner and he denied the charges. 3. Thereby, the defacto complainant had examined P.W.1 to P.W.3 and marked Exs.P.1 to P.6 and on the side of the petitioner, D.W.1 and D.W.2 were examined and marked Exs.D.1 to D.3. After examination of complainant side witness, the accused was examined under Section 313(1)(b) of Cr.P.C., with regard to incriminating circumstances found in the prosecution evidences. The accused denied the evidences. 4. Upon perusing the oral and documentary evidence, the trial Court found the petitioner guilty for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to undergo three months simple imprisonment and to pay a compensation of Rs.4,00,000/- (Rupees Four Lakhs only) in default to undergo one month simple imprisonment by a judgment, dated 23.03.2017. Aggrieved by the said conviction and judgment, the petitioner filed a criminal appeal in C.A.No.53 of 2017 before the learned Additional District and Sessions Judge, Theni at Periyakulam. The appellate Court also confirmed the judgment and conviction and dismissed the appeal through its judgment dated 09.01.2019. 5. Aggrieved by the said judgment, this revision c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. The learned counsel appearing for the respondent would contend that the petitioner had admitted the issuance of cheque and the signature found in the cheque. The burden of proof lies on the petitioner but he failed to prove his case. In fact the petitioner borrowed the amount and issued cheque and the same was presented to the bank and the same was returned as 'insufficient funds'. The petitioner in order to evade from paying the cheque amount, he had taken a false defence. The petitioner has examined P.W.1 to P.W.3 and marked Exs.P1 to P6 and presumption under Section 139 of Negotiable Instruments Act is in favour of the respondent. Once the petitioner admitted the signature and issued cheque, he has to prove that for what purpose cheque was given and burden of proof lies on the accused. The trial Court after elaborate discussion correctly convicted the accused and the appellate Court also dismissed the appeal and thereby, the revision is liable to be dismissed. 9. To support his contention, he relied upon the following judgments:- (I) V. Karthikeyan v. T.Manoharan reported in 2017 (2) MWN (Cr.) DCC 157 (Mad). (ii) T.Vasanthakumar v. Vijayakumari repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount and then some of the interest was remained unpaid. For that, the complainant refused to give the blank cheques and three signed stamp papers, which were handed over to the defacto complainant at the time of borrowal amount for security purpose. Since the petitioner/accused admitted the signature found in the cheque, he has to prove his case with sufficient evidence. Presumption under Section 139 of Negotiable Instruments Act would operate in favour of the complainant and he examined himself as P.W.1 and the petitioner was examined as D.W.1. The D.W.1 in his evidence stated that he borrowed Rs.2,00,000/- from the complainant on 18.09.2011. For that, he handed over Rs.50/- stamp papers, unfilled one cheque and two pro notes on 18.09.2011. For that, the defacto complainant issued a receipt and the same has been marked as Ex.D3 at the time of execution of Ex.D3. One Palanivelsamy was present and thereafter, the amount was repaid in the presence of Ramamurthy, D.W.2. At the time of settlement of money, interest of Rs.30,000/- was unpaid and the complainant assured to return the above said documents. Now due to aforesaid balance of interest, he filed this present cheque case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e theory of defence was not proved by the petitioner/accused. 15. Per contra the complaint proved his case by examining P.W.1 to P.W.3 and marking Exs.P1 to P6 and the petitioner also admitted the signature and issuance of cheque. Thereby, presumption under Section 138 of Negotiable Instruments Act is in favour of the complaint/respondent. In order to rebut the presumption the petitioner/accused failed to adduce sufficient evidence. The trial Court after elaborate discussion, correctly held that the defacto complainant has proved the case and the defence failed to establish the case and convicted the accused and the appellate Court also elaborately discussed about the evidences and documents and correctly held that the defence theory was not proved by the petitioner/accused and the complaint proved his case then dismissed the appeal by confirming the judgment of the trial Court. 16. The learned counsel appearing for the petitioner relied on the judgment of the Hon'ble Supreme Court in the case of (i)Tedhi Singh v. Narayan Dass Mahant reported in (2022) 6 Supreme Court Cases 735, wherein this Court in para no.8 held as follows:- It is true that this is a case under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of the cross- examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. (iii) K.Prakashan v. P.K.Surenderan reported in (2008) 1 Supreme Court Cases 258, wherein this Court in para Nos. 21 and 22 held as follows:- 21. No exception to the aforementioned legal principle can be taken. What, however, did not fall for consideration in the aforementioned case was as to how the said burden can be discharged. 22. It is now trite that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate courts jurisdiction to interfere is limited. [See M.S. Narayana Menon (supra) and Mahadeo Laxman Sarane Anr. v. State of Maharashtra, 2007 (7) SCALE 137] The High Court furthermore has not met the reasons of the learned Trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. On careful reading of the above said judgments, it is clear that the presumption under Section 139 of Negotiable Instruments Act is rebuttable presumption and 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. Further the burden was heavily upon the claimant to have showed that he had required funds for having advance money to the accused. In the case on hand, the accused admitted the signature found in the cheque and issuance of cheque but the contention of the petitioner is that he already repaid the amount but the said repayment was not proved by the petitioner. Thereby the aforesaid case laws will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the aforesaid judgment, it is clear that once the accused admitted the issuance of cheque or signature found in the cheque, the presumption under Section 139 of Negotiable Instruments Act would operate and the burden was on the accused to disprove the cheque or existence of legally enforceable debt. 21. Therefore, in the case on hand also, the accused admitted the issuance of cheque, signature of cheque and thereby, he has to disprove the cheque and his liability but he failed to prove the same. Thereby, the aforesaid case law will squarely applicable to the present facts of the case. 22. In this case, the oral and documentary evidences and witnesses clearly established the case of the complainant and the defence theory put forth by the accused was not proved and thereby, the trial Court as well as the appellate Court came to the fair conclusion and convicted the petitioner/accused for the offence under Section 138 of Negotiable Instruments Act. There is no infirmity found in the judgment of the Courts below and thereby this Court warrants no interference. Therefore, as discussed supra, this Court is of the opinion that Criminal Revision Case has no merits and deserves ..... X X X X Extracts X X X X X X X X Extracts X X X X
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