The Appellant/Accused namely A.Suseela was directed to be released on bail as per order of this Court dated 29.01.2008 in Crl.M.P.1/2008 in Crl.RC.108/2008 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.06.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA CRL.R.C.No. 108 of 2008 A.Suseela .. Petitioner/Accused ..Vs.. S.Radhakrishnan .. Respondent/Complainant Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 of Cr.P.C., to set aside the judgment passed in C.A.No.260 of 2007 on the file of the Principal District and Sessions Court, Coimbatore, dated 03.01.2008 confirming the judgment passed in S.T.C.No.428 of 2006, on the file of the Judicial Magistrate No.7, Coimbatore, dated 11.06.2007. For Petitioner : Mr.K.Kalyanasundaram For Respondent : No appearance ORDER This revision has been preferred against the judgment of conviction and sentence, dated 03.01.2008, in C.A.No.260 of 2007, on the file of the Principal District and Sessions Judge, Coimbatore, whereby the accused found guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced her to undergo one year simple imprisonment, confirming the judgment of conviction and sentence, dated 11.06.2007, in S.T.C.No.428 of 2006, on the file of the Judicial Magistrate's Court No.7, Coimbatore. 2.The gist and essence of the case is as follows: The revision petitioner/accused herein borrowed a sum of Rs.2,50,000/- from the respondent/complainant on 13.09.2005. After repeated demands made by the respondent, to discharge the liability, the revision petitioner/accused issued a cheque bearing No.797594, https://hcservices.ecourts.gov.in/hcservices/ dated 14.10.2005 for Rs.2,00,000/-, which was marked as Ex.P1. When the cheque was presented for encashment in Bank, it was returned as 'Funds insufficient' as per return memo under Ex.P2 and debit advice under Ex.P3. Therefore, the respondent issued a statutory notice to the revision petitioner on 02.11.2005, which was marked as Ex.P4 and the certificate of posting was marked as Ex.P5. The Registered post with acknowledgment card was returned as 'unclaimed' and the same was marked as Ex.P6. The revision petitioner issued a reply notice to the respondent under Ex.P7 stating that the allegations in the statutory notice are false. Since the revision petitioner has not repaid that amount, the respondent/complainant preferred a complaint under Section 138 of Negotiable Instruments Act. 3.The trial Court after considering the evidence of P.W.1 and D.W.1 and Exs.P1 to P7, found the revision petitioner/accused guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced her to undergo one year simple imprisonment, against which, she preferred an appeal in C.A.No.260 of 2007, on the file of the Principal District and Sessions Court, Coimbatore. The learned Principal District and Sessions Judge, after considering the arguments of both the counsel and materials available on record, confirming the judgment of conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the accused. 4.In spite of several adjournments, both the counsel were not ready. When the matter was posted 'for orders' today, no argument was advanced. Since it is a revision case, this Court empowers to peruse the materials available on record and decide the matter on merits. 5.On perusal of the evidence of P.W.1/the respondent and D.W.1/the revision petitioner, issuance of cheque and the signature in the cheque under Ex.P1 are admitted. But, D.W.1 in her chief- examination, she stated that a blank cheque has been issued by her as a security to one Sukumar for the amount of Rs.30,000/-, when she borrowed. Except Rs.5,000/-, the entire amount has been paid by her. While considering the evidence of D.W.1 in her cross-examination, it is clearly proved that her evidence is contrary to her reply notice, which was sent to the respondent. Since she accepted the issuance of cheque and signature in the cheque, the respondent/complainant is having presumption under Section 139 of Negotiable Instruments Act and the cheque has been issued only for discharging of existing legal liability. It is true that the presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption. So the revision petitioner/accused is having right to rebut the presumption under Section 139 of Negotiable Instruments Act, preponderance of probabilities. So the burden is on her to prove that cheque was issued as a security to one Sukumar. The said Sukumar was also not examined before the Court. In her cross-examination, she fairly conceded that she has not issued any notice to Sukumar for return of https://hcservices.ecourts.gov.in/hcservices/ the cheque as well as the promissory note. She further stated that she has not preferred any complaint against the said Sukumar and she has also not offered any explanation. In such circumstances, both the Courts below have disbelieved the evidence of D.W.1/the revision petitioner. D.W.1/the revision petitioner is a worldly wise lady and doing her export business in the name of 'Sri Krishna Carrier'. So it is painful to accept after paying the major portion of the amount, when she tender the balance amount and even though the said Sukumar refused to receive the same, she has not taken any steps to take back the cheque. In such circumstances, the defence raised by the D.W.1 is false and unacceptable one. So both the Courts below came to the correct conclusion that issuance of cheque and the signature in the cheque are admitted. So the respondent/complainant is entitled to invoke the presumption under Section 139 of Negotiable Instruments Act and the cheque Ex.P1 was issued for discharging of existing legal liability. When the cheque was presented for encashment in the Bank, it was returned as 'Funds insufficient. So the statutory notice was issued by the respondent. After receiving the notice, instead of repayment of that amount, the revision petitioner issued a reply notice under Ex.P7, in which, she raised another plea that she issued a blank cheque only as a security to one Sukumar, but she has not given any complaint against him. Considering the materials available on record and the judgment passed by the Courts below, I am of the view that both the Courts below have considered all the aspects in proper perspective and came to the correct conclusion that the accused was guilty for the offence under Section 138 of Negotiable Instruments Act. Hence, the judgment of conviction and sentence passed by both the Courts below are hereby confirmed and therefore, it does not warrant any interference. 6.In fine, • The Criminal Revision is dismissed. • The judgment of conviction and sentence passed by both the Courts below are hereby confirmed. • The bail bond executed by the revision petitioner/accused, if any, shall stand cancelled. • The trial Court is directed to take steps to secure the custody of the revision petitioner/accused to undergo the remaining period of sentence. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar kj https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal District and Sessions Court Coimbatore. 2.The Judicial Magistrate No.7 Coimbatore. 3. -Do Thro' The Chief Judicial Magistrate, Coimbatore 4.The Public Prosecutor High Court, Madras. 5.The Record Keeper Criminal Section, High Court, Madras. +1 CC to Mr.K.Kalyanasundaram, Advocate SR 34589 CRL.R.C.No. 108 of 2008 KK(CO) PKS https://hcservices.ecourts.gov.in/hcservices/