In the High Court of Judicature at Madras Dated : 11.11.2010 Coram : The Honourable Mr.Justice T.SUDANTHIRAM Crl.R.C.No.1460 of 2004 Kumar .. Petitioner/Accused -vs- Rajarajan .. Respondent/Complainant Revision Petition against the order dated 08.03.2004 passed in C.A.No.26 of 2003 on the file of Sessions Judge, Nagapattinam, confirming the judgment dated 19.03.2003 passed in C.C.No.71 of 2000 on the file of Judicial Magistrate No.I, Mayiladuthurai. For Petitioner : Mr.S.Sounthar For Respondent : Mr.D.Veerasekaran O R D E R The revision petitioner herein is the accused in C.C.No.71 of 2000 on the file of Judicial Magistrate No.1, Mayiladuthurai and he was convicted for an offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and also to pay fine of Rs.2,000/-, in default, to undergo three months simple imprisonment. The said conviction and sentence were confirmed by the learned Sessions Judge, Nagapattinam in C.A.No.26 of 2003. Challenging the said conviction and sentence, the petitioner has preferred this revision. 2.The case of the complainant is that the accused received a loan of Rs.1,20,000/- and towards that loan, he issued a cheque dated 07.06.1999 drawn on Indian Overseas Bank. While the complainant presented the cheque for collection in the Lakshmi Vilas Bank, Mayiladuthurai on 04.10.1999, it was returned with an endorsement "not arranged for". The complainant issued a statutory notice calling upon the accused to pay the cheque amount. The accused sent a reply for the same. As the accused had not paid the cheque amount, the complainant filed a complaint against the accused. 3.In order to prove the case of the complainant, P.Ws.1 to 3 were examined and Exs.1 to 5 were marked. The accused was questioned under Section 313 Cr.P.C. and he has denied his complicity. The accused, in order to prove his defence, examined D.Ws.1 and 2 and marked Exs.D.1 to D.3. It is the evidence of D.Ws.1 and 2 that D.W.2 is the brother-in-law of D.W.1 and that D.W.2 availed a loan from Mayilai Finance and the said finance company was run by Balakumar, a https://hcservices.ecourts.gov.in/hcservices/ Village Administrative Officer. He has stated that the accused issued a blank cheque and that though D.W.2 cleared all the debts, the cheque was retained. According to D.W.2, the loan was obtained in the year 1996 and Ex.D.3 series are the receipts for clearing the loan amount. On analysing the evidence, both the trial Court and the appellate Court found the accused guilty. 4.The learned counsel for the revision petitioner has submitted that the accused had sent a reply notice, which is marked as Ex.P.5 and he had denied his liability to the complainant. According to the accused, the cheque was issued blank in the year 1996 and he stood only as a co-applicant along with D.W.1 for the loan obtained by D.W.2. Though the loan amount had been settled by D.W.2, the cheque had been mis-used. The complainant is none else than the nephew of Balakumar, who was a Village Administrative Officer and who was running the finance company. The learned counsel for the petitioner further submitted that though Ex.P.1, cheque is dated 07.06.1999, the cheque book containing the said cheque leaf was issued to the accused by the bank in the year 1995 and in the year 1996, another cheque book was also issued by the bank to the accused. Both the cheque books were marked as Exs.D.1 and D.2. The learned counsel further drew the attention of this Court to the complaint and the statutory notice wherein the date of borrowing of loan was not mentioned and it is merely mentioned that the cheque was issued towards the subsisting liability. In the chief examination, P.W.1 had stated that the loan was obtained on 07.06.1999 and the cheque was issued on the same date. But, in the cross examination, he had stated that the loan was given one day prior to the date of issuing the cheque. The learned counsel for the petitioner vehemently submitted that the accused, with all materials, had rebutted the presumption that arose under Section 139 of the Negotiable Instruments Act and established with substantial materials that there was no liability for the accused towards the complainant. The learned counsel also submitted that both the trial Court and the appellate Court have rejected the evidence of defence witnesses on flimsy grounds and on minor contradictions. 5.Per contra, the learned counsel for the respondent has submitted that the trial Court and the appellate Court did not accept the defence witnesses and the evidence let in by the accused for rebutting the presumption being not accepted by both the trial Court and the appellant Court, it is not proper for the accused seeking for re-appraisal of those evidence in this criminal revision petition. The learned counsel for the respondent has further submitted that the accused had not denied his signature in the cheque and Exs.D.1 and D.2 series would not lead to a presumption that the cheque must have been given in the year 1996 itself. The learned counsel also pointed out that the evidence of D.Ws.1 and 2 contradict each other and the loan amount obtained is different and according to D.W.2, the accused was known to him only and he was not known to D.W.1, but the name of D.W.1 is mentioned in Ex.P.5, reply notice, which would lead to show that the evidence of D.Ws.1 and 2 have been set up only for the purpose of the case. https://hcservices.ecourts.gov.in/hcservices/ 6.This Court considered the above submissions and perused the materials. It is the evidence of P.W.1, the respondent herein, that the accused issued the cheque Ex.P.1 on 07.06.1999 for the loan amount of Rs.1,20,000/- and when the cheque was presented with the bank, it was dishonoured. P.W.1 had admitted in cross-examination that except the cheque, he has no other material in order to prove the liability of the accused. Of course, under Section 139 of the Negotiable Instruments Act, it should be presumed, unless the contrary is proved, that the holder of the cheque received the cheque for the discharge of any debt or liability. Initially the presumption arises under Section 139 of the Act, which could be rebutted by the accused. It is to be seen that the accused in this case had rebutted the presumption that arises under Section 139 of the Act. On receiving the statutory notice from the complainant, the accused had sent his reply, Ex.P.5. In Ex.P.5, the accused had specifically denied his liability to the complainant. It is also specifically stated that the cheque was given by the accused to a foreman of Mayilai Finance and the cheque was issued blank. It was also stated that the person by name Marimuthu had availed the loan in the year 1996 and the accused stood as co-applicant for the said loan. The cheque was taken from the accused. While P.W.1 was cross- examined, he had denied the fact that the cheque was given in the year 1996. Though he had stated in the chief-examination that the loan was given on 07.06.1999, in the cross-examination he had stated that the loan was given one day prior to that date. 7.While the bank officer, P.W.3 was examined to prove the fact that the cheque was dishonoured, during his cross-examination, Exs.D.1 and D.2 were marked. According to P.W.3, Ex.D.1, cheque book was issued in the year 1995 and Ex.D.2, cheque book, was issued in the year 1996 and they have been used from 1996 to 1998. Ex.D.1 is the cheque book for the cheques bearing No.389311 to 389320 and Ex.P.1, cheque bears the number 389314. Therefore, this Ex.D.1 probabilise the fact that the accused was in possession of the cheque leaf given in the year 1995 and after using the cheque book, Ex.D.1, he had obtained another cheque book, Ex.D.2 in the year 1996. Further, Marimuthu, whose name is mentioned in the reply notice, Ex.P.5, was examined as D.W.1. According to D.W.1, his brother-in- law, who is D.W.2, wanted a loan and therefore, he obtained a loan from Mayilai Finance. As the finance company insisted for Government servant's sureties, D.W.2 obtained a cheque from the accused and gave it to the finance company. D.W.1 has also stated that his brother- in-law had cleared the entire loan amount. D.W.1 stated that D.W.2 and the accused were friends and D.W.2 obtained loan in the year 1996. The brother-in-law of D.W.1, Dhatchinamoorthy, is D.W.2. He has also given specific evidence that he obtained loan of Rs.15,000/- from Mayilai Finance and he obtained cheque from the accused and handed over to the finance company. Subsequently, he had discharged the loan and he produced the receipts, Ex.D.3 series. 8.This Court finds that the evidence of D.Ws.1 and 2 coupled with Exs.D.1 and D.2 and also the reply notice, Ex.P.5, are https://hcservices.ecourts.gov.in/hcservices/ sufficient materials to rebut the presumption that arose under Section 139 of the Act. The accused had denied his liability with probable materials. Of course, both the trial Court and the appellate Court have rejected the evidence of D.Ws.1 and 2 on some minor contradictions. According to D.W.1, the loan amount was Rs.20,000/- and according to D.W.2, the loan amount was Rs.15,000/- and the receipts, Ex.D.3 series were also not accepted by the Courts below for the reason that the signature in the receipts are not proved and they did not contain date. A Perusal of Ex.D.3 shows that they contain date, but only the year is not mentioned and some one representing the finance company had signed in the receipts. It cannot be said that Ex.D.3 series were cooked up for the purpose of the case. 9.Once the liability is denied by the accused and also the denial is supported by probable materials, the presumption that arises under Section 139 of the Act being rebutted, then the burden is shifted on the complainant to prove the fact of liability of the accused beyond reasonable doubt. As already observed, according to P.W.1, except the cheque, Ex.P.1, he has no other material to prove the liability of the accused. The complainant had not obtained any promissory note from the accused to show that the accused was directly liable to pay to the complainant by receiving loan from him. In the absence of any such material from the complainant, except the cheque, it is not possible to accept the case of the complainant when the accused had denied his liability with supporting materials. For the above said reasons, the conviction and sentence imposed on the accused are set aside. The Criminal Revision Case is allowed. The fine amount, if any paid, shall be refunded to the petitioner. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sra To 1. The Sessions Judge, Nagapattinam. 2. The Judicial Magistrate No.I, Mayiladuthurai. 3. -do- Through the principal Disttict & Sessions Judge, Nagapattinam. Copy to The Section Officer Criminal Section, High Court Madras. + 1 cc to Mr.S. Sounthar Advocate SR.81390 Crl.R.C.No.1460 of 2004 TAM(CO) EU 24.11.10 https://hcservices.ecourts.gov.in/hcservices/