In the High Court of Judicature at Madras Dated: 19.09.2011 Coram The Honourable Mr. Justice C.T.SELVAM Crl.Rc.No.1380 of 2008 V.Veeramani ... Petitioner ..vs.. K.K.Palanisamy ... Respondent Prayer:This Criminal Revision Petition is filed under Section 397 and 401 of the Code of Criminal Procedure, against the order dated 31.07.2008 made in C.A.No.281 of 2006 passed by the learned I Additional Sessions Judge, Coimbatore confirming the conviction in C.C.No.877 of 2003 on the file of the learned Judicial Magistrate No.I, Coimbatore dated 18.05.2006 and the conviction and sentence of fine of Rs.50,000/- in default, 3 months S.I. is unjust and illegal. For Petitioner : Mr.A.Stephen for Mr.Sankarasubbu For Respondent : Mr.K.Ramachandran O R D E R This revision arises against two concurrent judgments of courts below, convicting the petitioner for offence under Section 138 of Negotiable Instrument Act. 2.The petitioner is convicted in C.C.No.877 of 2003 on the file of the Judicial Magistrate Court No.V, Coimbatore. The case of the respondent was that the petitioner borrowed a sum of Rs.50,000/- and towards repayment, issued a cheque dated 25.07.2003 for the said sum. On the return of the cheque, the respondent/complainant issued statutory notice and subsequently, preferred a complaint under Section 138 of Negotiable Instrument Act. In the course of the evidence, the respondent/complainant appeared and examined himself as P.W.1, informing that the borrowing had been effected in April 2002 towards meeting the expenses of the petitioner in a case pending against him. Thereafter, the respondent/complainant saw the petitioner in June 2003 and on repayment being demanded, the petitioner has issued a cheque dated 25.07.2003 for the said sum of Rs.50,000/-. In cross, the respondent/complainant had informed that the date of the cheque entered was on the very date of issuance thereof. On a perusal of the cheque, it discloses that the signature https://hcservices.ecourts.gov.in/hcservices/ thereupon was in ball point pen and the rest in ink. The petitioner had in response to the statutory notice, caused a reply marked as Ex.P6. Therein, the petitioner had contended that he had effected borrowings from his co-employees and also, admitted that he borrowed the sum from the son-in-law of the respondent/complainant who is one of such co-employees. The petitioner therein had stated that he does not know the respondent/complainant and no amount has been borrowed from him and sought an explanation on how the respondent/complainant had come into the possession of the cheque. The petitioner had also informed that he had preferred a police complaint against the son-in- law/Ranjan and others on 27.06.2003 and it was thereafter, that the cheque giving rise to the complaint had been presented for payment. Towards disclaiming the contention of the respondent/complainant that the borrowings had been effected in meeting the legal expenses of the petitioner, the petitioner has submitted before the lower court Ex.D1 to Ex.D3 which informed that his suspension from service was revoked as early as on 07.09.1999 and pursuant thereto, he has taken charge on 23.02.2000. The contention is that the petitioners suspension was revoked on his acquittal under judgment in a criminal case dated 17.02.1997 and therefore, the respondent/complainant's claim of borrowing towards legal expenses in the year 2002, could not stand. 3.Urging the above, learned counsel for the petitioner submitted that the petitioner has succeeded in discharging the burden passed upon him under Section 139 of the Negotiable Instruments Act. In such circumstances, the respondent/complainant had failed to prove the alleged debt. 4.Learned counsel for the respondent would submit that the issue of cheque stood admitted. Learned counsel submitted that Ranjan, the son-in-law of the respondent/complainant had been examined as P.W.3 and he had informed of the sum of Rs.50,000/- having been lent by his father-in-law at his request and of the petitioner having issued a cheque to his father-in-law. Therefore, it is the contention of learned counsel, that in these circumstances, there was evidence of cheque having been issued towards a legally enforceable debt and hence, the petitioner could not disclaim the prosecution case and the judgment of the courts below do not call for any interference. 5.Considering the rival submissions, this Court finds that the petitioner has discharged the initial burden cast upon him under Section 139 of the Negotiable Instruments Act by preponderance of probability. In his reply, the petitioner had informed that he borrowed money from his co-employees and of having preferred a complaint against P.W.3/Ranjan, the son-in-law of the respondent/complainant who is one of the co-employees. The presentation of the cheque is subsequent. He had denied any connection with the respondent/complainant. The fact of complaint having been given by the petitioner had been admitted by P.W.3. P.W.3 in chief examination had stated that the petitioner/accused had https://hcservices.ecourts.gov.in/hcservices/ filled up the cheque dated 25.07.2003 and handed over the same. A bare perusal of the cheque marked as Ex.P1 reflects that the signature of the petitioner thereupon is in one ink while all other writings thereupon are in another. Given the above, it would have been for the respondent/complainant to prove the debt in respect of the cheque. Finding no evidence, whatsoever in this regard, this revision would stand allowed. For the aforesaid reasons, the Criminal Revision Petition is allowed. The order passed by the Court below in C.A.No.281 of 2006 passed by the learned I Additional Sessions Judge, Coimbatore confirming the conviction in C.C.No.877 of 2003 on the file of the learned Judicial Magistrate No.I, Coimbatore dated 18.05.2006 is set aside. Fine, if any paid, shall be refunded to the petitioner. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. DP To 1.The I Additional Sessions Court, Coimbatore. 2.The judicial Magistrate Court-I, Coimbatore. 3.The Public Prosecutor, High Court, Madras. 1 cc To Mr.R.Sankarasubbu, Advocate Sr 58445 1 cc To Mr.R.Shyamala, Advocate Sr 58028 Crl.R.C.No.1380 of 2008 km[co] gp/17.11. https://hcservices.ecourts.gov.in/hcservices/