This Criminal Revision Case has been preferred against the judgment of the learned Additional District and Sessions Judge (Fast Track Court No.2), Madurai dated 21.09.2010 pronounced in C.A.No.43/2010. By the said judgment, the judgment of the trial court, namely learned District Munsif cum Judicial Magistrate, Vadipatti dated 07.05.2010 made in S.T.C.No.487/2008 was confirmed.

2. The petitioner herein was prosecuted by the first respondent herein for an offence punishable under section 138 of the Negotiable Instruments Act, 1881, based on the allegation that the revision petitioner issued a cheque dated 07.11.2008 bearing No.936888 drawn on State Bank of Hyderabad, Madurai for a sum of Rs.4,00,000/- in discharge of a debt due to the first respondent; that the cheque, when presented through ICICI Bank, Sholavandhan, the same was dishonoured on 10.11.2008 pursuant to which a statutory notice was issued under section 138 of the Negotiable Instruments Act, 1881 on 20.11.2008 calling upon the revision petitioner/accused to make payment of the said amount and that the revision petitioner, who received the said notice on 26.11.2008, issued a reply dated 04.12.2008 containing false averments without complying with the demand made in the notice.

3. The private complaint preferred by the first respondent was taken on file by the learned District Munsif cum Judicial Magistrae, Vadipatti after following the procedure prescribed for taking cognizance of offences on complaint and numbered it as S.T.C.No.487/2008. On receipt of summons, the petitioner herein/accused entered appearance and denied the charge. Learned District Munsif cum Judicial Magistrate conducted trial, in which the first respondent herein/complainant figured as the sole witness (PW-1) on his side and produced seven documents as Exs.P1 to P7. After the completion of evidence on the side of the complainant, the revision petitioner herein/accused was questioned under section 313(1)(b). Three witnesses including the revision petitioner/accused were examined as DWs.1 to 3 and no document was marked on his side. The learned District Munsif cum Judicial Magistrate, Vadipatti heard the arguments advanced on both side and considered the evidence. Upon such a consideration, the learned District Munsif cum Judicial Magistrate by judgment dated 07.05.2010, found the revision petitioner herein/accused guilty of an offence punishable under section 138 of the Negotiable Instruments Act, 1881, convicted him for the said offence and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- and imposed a default sentence of three months simple imprisonment in case of failure to pay the fine amount.

4. As against the said judgment of the trial court, the revision petitioner/accused preferred an appeal before the Sessions Court, which was taken on file as C.A.No.43/2010. The same came to be made over to the Additional District and Sessions Judge (Fast Track Court No.2), Madurai and the said judge, after hearing, dismissed the appeal confirming the judgment of the trial court in respect of conviction as well as sentence. Questioning the correctness and legality of the said judgment of the appellate court, the revision petitioner/accused has preferred the present criminal revision case on various grounds set out in the grounds of revision.

5. Advancing arguments on behalf of the revision petitioner, the learned counsel has submitted that both the courts below failed to apply the correct legal proposition regarding the scope of presumption under section 138 of the Negotiable Instruments Act, 1881; that though there can be a presumption that the drawee or holder received the cheque for the discharge of any debt or other liability, there cannot be any presumption regarding existence of a legally recoverable debt; that the complainant is bound to prove the existence of such legally recoverable debt or liability and that in the event of non-establishment of the existence of a legally recoverable debt, the presumption contemplated under section 139 of the Negotiable Instruments Act, 1881 does not get attracted.

6. The learned counsel for the revision petitioner/accused has contended further that since the first respondent/complainant is only an agriculturist, without any other source of income, the trial court and the appellate court ought to have accepted the plea of the revision petitioner/accused that the cheque given by the revision petitioner/accused to someone else in respect of some other transaction, has been misused by the first respondent/complainant; that the courts below failed to note that the burden of proof required on the part of the accused facing trial for an offence under section 138 of the Negotiable Instruments Act, 1881 is not proof beyond reasonable doubt and the same can be done on preponderance of probabilities and that the courts below ought to have held that the admissions elicited from PW-1 and the improbabilities found in the evidence on the side of the complainant alone are enough for the revision petitioner/accused to rebut the presumption and that even beyond that the petitioner has also adduced evidence through DWs.1 to 4. It is the further contention of the learned counsel for the petitioner that the courts below ought not have forgotten that the general presumption of innocence gets revived once the presumption under section 139 of the Negotiable Instruments Act, 1881 is rebutted by preponderance of probabilities and thereafter the burden shall be solely on the complainant to prove the charge beyond reasonable doubt.

7. Per contra, learned counsel for the first respondent/complainant would contend that the grounds alleged are raised only for the sake of raising some grounds for challenging the well-considered concurrent findings of the courts below; that no defect or infirmity, either in the appreciation of evidence or in the application of law could be found in the judgments of the courts below and that hence the criminal revision case should be dismissed.

8. The dishonoured cheque, based on which the complaint was preferred, has been marked as Ex.P1. The bank challan evidencing the presentation of the cheque for collection and the intimation of the bank returning the cheque without payment stating "funds insufficient and A/c inoperative", as reasons for dishonour, has been marked as Exs.P2 and P3. A copy of the legal notice issued by the first respondent/complainant to the revision petitioner/accused intimating the dishonour of the cheque and calling upon him to make payment of the cheque amount, the postal receipt evidencing the fact that the said notice was sent through registered post and the postal acknowledgment evidencing service of the said notice on the revision petitioner/accused have been produced and marked as Exs.P4 to P6 respectively. The reply notice sent by the revision petitioner through his advocate has been marked as Ex.P7.

9. Before the courts below, a contention came to be raised that the complaint was premature and hence the complaint deserved to be rejected. According to the said contention, statutory notice under section 138 of the Negotiable Instruments Act, 1881 was served on the revision petitioner/accused on 26.l1.2008, but before the expiry of a period of 15 days thereafter the complaint came to be filed and hence the complaint should have been rejected as premature. Of course the complaint came to be filed on the 15th day after service of notice on the revision petitioner/accused. But the same was re- presented only on 17.12.2008 after having been returned. Though the first presentation of the complaint would be on the last day of the period of 15 days after the service of notice, since the same was returned and it was re-presented subsequently, by which time the clear period of 15 days had elapsed, we cannot accept the contention that the complaint is premature. It should also be noticed that the 15 days period has been prescribed for enabling the drawer of the cheque to make arrangement for the payment of the cheque amount. During the said period of 15 days, the drawer of the cheque may either pay the cheque amount or make arrangements for the payment of the cheque amount, if the cheque is presented again for encashment and request the payee/holder to re-present the cheque for encashment. If the drawer of the cheque fails to do so and on the other hand, expresses his intention not to make payment of the cheque amount by issuing a reply notice, then it shall be unreasonable and unethical to ask the payee/holder to again wait for the expiry of 15 days. In this case, since the revision petitioner/accused has chosen to send a reply under Ex.P7 denying his liability and refusing to comply with the demand made in the notice, it cannot be contended that the complaint has been prematurely filed. The said contention was rightly rejected by the courts below and this court also does not find any ground to interfere with such a finding.

10. Though the revision petitioner/accused had taken a plea in the trial court that the cheque was presented through ICICI Bank, Sholavandhan in order to prefer the complaint in the court of learned District Munsif cum Judicial Magistrate, Vadipatti, learned counsel for the revision petitioner has conceded before this court that the question of jurisdiction does not arise in this case, because the revision petitioner resides at Sholavandhan within the jurisdiction of the learned District Munsif cum Judicial Magistrate, Vadipatti and that hence the complaint filed on the file of the learned District Munsif cum Judicial Magistrate, Vadipatti could not be challenged on the ground of want of jurisdiction or malafide preference of jurisdiction.

11. Ex.P1-cheque is alleged to have been issued by the revision petitioner/accused in favour of the first respondent/complainant on 07.11.2008 for the discharge of an alleged debt, namely a sum of Rs.4,00,000/- borrowed by the revision petitioner/accused from the first respondent. Of course it is not in dispute that Ex.P1-cheque bearing cheque No.936888 pertains to the bank account maintained by the revision petitioner/accused with his banker, namely State Bank of Hyderabad, Madurai-1. Though the first respondent/complainant would have stated that the revision petitioner/accused borrowed a sum of Rs.4,00,000/- from the first respondent/complainant and for the discharge of the said debt Ex.P1-cheque was issued, the revision petitioner/accused has taken a definite stand that there was no transaction between the revision petitioner/accused and the first respondent/complainant. On the other hand, it is the contention of the revision petitioner/accused that he had dealings with one Bhaskar, with whom he had entrusted blank cheques as security; that the said Bhaskar and one Periya Karuppan, the father-in-law of the complainant, filled up one of the said cheques in the name of the complainant and the complainant has been used as a stooge in their hands for prosecuting the revision petitioner/accused. In this regard, learned counsel for the first respondent/complainant would submit that the very fact that the revision petitioner/accused would state the relationship of the first respondent and Periyakaruppan to be son-in-law and father-in-law, would falsify the stand of the revision petitioner/accused that the revision petitioner/accused did not know who the first respondent/complainant was before the receipt of the legal notice. In this regard, learned counsel for the revision petitioner/accused has made it clear that right from the beginning the stand of the revision petitioner/accused happened to be consistent, as he had taken a stand in the reply notice that the revision petitioner/accused never borrowed any amount, much less a sum of Rs.4,00,000/- from the first respondent/complainant and he never issued Ex.P1-cheque to him. It was also stated in the reply notice in clear terms that the revision petitioner/accused did not know the first respondent and he had not even seen him and that there was no chance or possibility for the revision petitioner to have borrowed any amount from the first respondent/complainant. On the other hand, in the reply notice itself he had stated that one Bhaskar, a police constable had lent him a sum of Rs.1,00,000/- on 29.12.2006, for which he got three unfilled signed cheques and three unfilled signed pro-notes from the revision petitioner/accused; that one Ravichandran of Kallanai, a friend of the revision petitioner/accused had borrowed a sum of Rs.5,00,000/- from the said Bhaskar and one Papa @ Periyakaruppan, for which borrowal, the revision petitioner/accused had given three unfilled signed cheques and an unfilled signed pro-note as guarantor for the repayment of the same; that the said Ravichandran had discharged the above said loan, but the lendor, namely Bhaskar, had not returned the revision petitioner's cheques and pro-note given as security for the loan of Ravichandran; that when a demand was made with Bhaskar he informed that he had misplaced the cheques and pro-note and that after the receipt of legal notice, the revision petitioner/accused came to know that the first respondent/complainant has been used as a stooge by the said Bhaskar and Papa @ Periyakaruppan.

12. Section 139 of the Negotiable Instruments Act, 1881 contemplates a presumption in favour of the payee/holder that the cheque was obtained for the discharge of a debt or other liability. There are earlier decisions to the effect that such presumption will not be enlarged by including a presumption that there was a legally enforceable debt or other liability in discharge of which the cheque was issued. The learned counsel for the first respondent/complainant would contend that if the presumption does not include a presumption regarding the existence of a legally enforceable debt or other liability in discharge of which the cheque was issued, then the provision found in section 139 of the Negotiable Instruments Act, 1881 would almost become a dead letter and that the same was the reason that made a larger bench of the Hon'ble Supreme Court to hold that the presumption mandated by section 139 of the Negotiable Instruments Act, 1881 includes a presumption that there exists a legally enforceable debt or other liability in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441. Learned counsel for the first respondent/complainant relied on the observations of the Hon'ble Supreme Court in Goaplast (P) Ltd. v. Chico Ursula D'Souza reported in (2003) 3 SCC 232, wherein it has been observed as follows:

13. However, the learned counsel for the revision petitioner/accused drew the attention of the court to the observations made by another Division Bench of the Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in (2008) 4 SCC 54, wherein the following observations were made:

30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.

31. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct."

14. Clear observations have been made by a larger bench of the Hon'ble Supreme Court in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 cited supra, which will provide a fitting answer to the above said contention raised by the learned counsel for the revision petitioner/accused. In paragraph 26 of the said judgment , their Lordships of the Hon'ble Supreme Court has made the following observations:

As such, it can be said that it is now well settled that the presumption mandated by Section 139 of the Negotiable Instruments Act, 1881 includes the presumption of existence of a legally enforceable debt or other liability. Otherwise, as rightly contended by the learned counsel for the first respondent/complainant, the presumption contemplated in Section 139 of the Negotiable Instruments Act, 1881 will become a dead letter.

15. But, at the same time, it should not be forgotten that the presumption contemplated under section 139 of the Negotiable Instruments Act, 1881, is a rebuttal presumption and that in every criminal case unless and until the accused is proved to be guilty of the offence either by leading positive evidence or by evidence in the form of presumptions, shall be presumed to be innocent. While considering the scope of the general presumption of innocence and the presumption contemplated under section 139 of the Negotiable Instruments Act, 1881, their Lordships of the Hon'ble Supreme Court, have made it clear that the presumption under section 139 of the Negotiable Instruments Act, 1881, is a rebuttable presumption and when it is rebutted by the accused, the burden again shifts on the prosecution/complainant to prove the offence beyond reasonable doubt. Regarding the scope of proof needed for rebutting the presumption under section 139 of the Negotiable Instruments Act, 1881, it has been again reiterated that it is not comparable with the proof of guilt needed on the part of the prosecution to prove the commission of the offence, which shall be beyond reasonable doubt and it shall be enough for the accused to rebut the presumption by preponderance of probabilities.

16. A further explanation has also been given in a number of judgments to the effect that for rebutting the presumption, it is not necessary for the accused to get into the witness box or examine any witness or produce any document. On the other hand, if the accused is able to show that the materials available in the evidence adduced on the side of the prosecution/complainant and by the answers elicited from the prosecution witnesses on the side of the complainant would improbablise the case of the complainant and such degree of proof shall be enough to rebut the presumption and shift and recast the burden of proving the guilt of the accused on the prosecution/complainant. In this backdrop of legal principle, we have to consider, whether the petitioner has succeeded in rebutting the presumption and if so, whether the respondent/complainant has proved the existence of legally recoverable debt as claimed by him beyond reasonable doubt.

17. Learned counsel for the revision petitioner/accused has pointed out several improbabilities in the case of the complainant, which are also revealed in the evidence adduced on the side of the respondent/complainant and submitted that the same alone shall be enough to raise a strong suspicion as to the complainant's case, which shall be enough to rebut the presumption under section 139 of the Negotiable Instruments Act, 1881 by preponderance of probabilities. Learned counsel for the petitioner, besides relying on the discrepancies found in the evidence adduced on the side of the prosecution, has also pointed out the fact that the revision petitioner/accused examined three witnesses on his side and by such evidence also, he was able to prove the improbabilities of the complainant's case. The further contention of the learned counsel for the revision petitioner/accused is that when the case of the complainant/prosecution is inconsistent and oscillating at various points, whereas the case of the accused is consistent, it must be held that the prosecution failed to prove the charge and the accused is entitled to acquittal.

18. In support of the said contention, the learned counsel for the revision petitioner/accused relied on a judgment of the Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G.Hegde reported in (2008) 1 MLJ (Crl) 1149 (SC). Of course it is true that in this judgment, a Division Bench of the Hon'ble Supreme Court held that the presumption contemplated under section 139 of the Negotiable Instruments Act, 1881, does not include a presumption regarding existence of a legally recoverable debt and on the other hand, it merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. The said view was held to be incorrect by a larger Bench of the Hon'ble Supreme Court in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 discussed supra. But, excepting the question of the scope of the presumption regarding the existence of a legally recoverable debt or other liability in discharge of which the cheque was issued, all other observations made in Krishna Janardhan Bhat v. Dattatraya G.Hegde's case have been quoted with approval by the larger Bench of the Supreme Court. In Krishna Janardhan Bhat v. Dattatraya G.Hegde 's case, the Hon'ble Supreme Court has held that the trial court and the appellate court therein committed serious error in proceeding on the basis that for proving the defence, the accused was required to step into the witness box and unless he does so he would not be discharging his burden and that such an approach on the part of the court was not correct. Clear observation has also been made to the effect that for discharging burden of proof placed upon the accused under a statute, he need not examine himself; that he may discharge his burden on the basis of the materials already brought on record and that the standard of proof on the part of an accused and that of the prosecution in criminal cases are different meaning that the standard of proof required from the accused is on preponderance of probabilities, whereas the proof required on the part of the prosecution in a criminal case is proof beyond reasonable doubt. The following are the observations of the Hon'ble Supreme Court:

As pointed out supra, the said view expressed by the Division Bench of the Hon'ble Supreme Court has been quoted with approval by the larger Bench of the Hon'ble Supreme Court in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441.

19. In this case, the learned counsel for the revision petitioner/accused, has pointed out various imponderables and improbabilities found in the case of the complainant. First of all, the learned counsel for the revision petitioner/accused has pointed out the fact that the case of the complainant is not consistent and his stand was oscillating from time to time as he changed his version according to the exigencies of the circumstances. Ex.P4 is the copy of the statutory notice issued to the revision petitioner/accused by the respondent/complainant through his counsel. In Ex.P4-notice, it had been stated that the revision petitioner/accused borrowed a sum of Rs.4,00,000/- from the respondent/complainant and in order to discharge the said liability, he issued a cheque bearing No.936888 dated 07.11.2008 drawn on State Bank of Hyderabad, West Perumal Maistry Street Branch, Madurai and that when the cheque was presented for collection, it was returned unpaid with an endorsement 'insufficient fund and A/c inoperative'. It is pertinent to note that in the said notice, the respondent/complainant had not stated the date on which the revision petitioner/accused borrowed the said amount and the date on which the cheque was issued. It has not even been stated as to whether the cheque was issued on the date of borrowal or on a subsequent day.

20. On receipt of the said notice, the revision petitioner/accused issued a reply under Ex.P7. In Ex.P7, the revision petitioner has stated in unambiguous terms that he never borrowed any amount from the respondent/complainant and he did not issue cheque No.936888 dated 07.11.2008 to the respondent/complainant. In addition, the revision petitioner/accused has also stated in the reply notice that there was no chance or possibility for him to borrow any amount from the respondent/complainant and that there was no possibility for him to issue a cheque on 07.11.2008. In fact in paragraphs 3 and 4 of the reply notice, the revision petitioner/accused has narrated the facts of his borrowing an amount from one Baskar, the borrowal of one Ravichandran, a friend of the revision petitioner/accused from Baskar and Pappa @ Periakaruppan and the discharge of the said loan extended to Ravichandran. Besides reciting the same, he has also made an averment to the effect that when the return of the signed and unfilled cheques and pronotes were sought for, the said Baskar informed that he had misplaced them. Reciting all those facts, the revision petitioner/accused had stated in his reply notice that he apprehended misuse of the cheques by the said Baskar and Pappa @ Periakaruppan and issuance of the notice through the respondent/complainant. When such is the case, naturally, the complainant is expected to state the details of the borrowal, namely the date of borrowal and the fact whether the cheque was issued on the date of borrowal or subsequently. In the complaint also, the respondent/complainant simply reproduced what had been stated in Ex.P4-notice, without stating whether the cheque was issued on the date of borrowal or subsequently. In the proof affidavit accepted as his evidence-in-chief also, the respondent/complainant has stated that the revision petitioner/accused borrowed a sum of Rs.4,00,000/- from him at his residence and issued the cheque dated 07.11.2008. The said statement contained in a single sentence, is capable of conveying a meaning that the cheque was issued on the date of borrowal itself. Nowhere in the notice, complaint or the proof affidavit, the respondent/complainant has stated that he had lent the amount without any supporting document at the first instance and subsequently, when demand for payment was made, the revision petitioner/accused issued the cheque in question, namely Ex.P1. However, during cross-examination, PW.1 would state that the cheque was handed over to him by the revision petitioner/accused on 07.11.2008.

21. It has been admitted by PW.1 that the signature found in Ex.P1-cheque is that of Muthukumaran, the revision petitioner/accused and the other particulars written in the cheque are not in the handwriting of the revision petitioner/accused. However PW.1 would also state that a person, who came along with the revision petitioner/accused, wrote the other particulars in the cheque and the revision petitioner/accused put his signature using a different pen. Though the revision petitioner/accused would have taken a stand that there was no transaction between the respondent/complainant and the revision petitioner/accused and the signed blank cheques given to one Baskar and Pappa @ Periakaruppan seems to have been filled up in the name of the respondent/complainant and thus the case has been foisted against the revision petitioner/accused, the evidence of the respondent/complainant in this regard is some what evasive. He would state that on prior occasions he did not have any transaction with the revision petitioner/accused. He would also admit that the above said Pappa @ Periakaruppan is none other than his father-in-law and he got acquainted with the revision petitioner/accused only through his father-in-law, namely the above said Pappa @ Periakaruppan. However, he would plead ignorance as to whether Baskar and Pappa @ Periakaruppan were doing money lending business. He would also state that neither Baskar nor Ravichandran, the friend of the petitioner/accused was known to him.

22. Apart from the respondent/complainant, who figured as the sole witness (PW.1) on his side, no other witness has been examined in support of his case. On the other hand, besides examining himself as DW.1, the revision petitioner/accused has examined two other witnesses as DWs.2 and 3. DW.2 is the Manager of ICICI Bank, Vadipatti branch. The said witness was examined only to show that in order to choose the jurisdiction of Vadipatti Judicial Magistrate, the cheque came to be deposited for collection through ICICI Bank, Vadipatti. But, as pointed out supra, the revision petitioner/accused has given up the said plea as the said plea cannot be sustained because even otherwise the learned Judicial Magistrate, Vadipatti has jurisdiction since the petitioner/accused was residing within the jurisdiction of the said court. As such, no importance can be attached to the evidence of DW.2.

23. One Prathaban, has been examined as DW.3. He speaks about the loan transaction between Baskar and the revision petitioner/accused. According to his version, the revision petitioner/accused borrowed a sum of Rs.1,00,000/- from Baskar and gave an unfilled, but signed cheque and an unfilled but signed promissory note to the said Baskar. He has also stated that in the unfilled promissory note he also affixed his signature as a witness. It is the further evidence of DW.3 that the said borrowal was made on 29.12.2006 and the said Baskar, after deducting a sum of Rs.10,000/- as interest, paid only a sum of Rs.90,000/- to the revision petitioner/accused. It is also his statement that the said Baskar did not return the promissory note and the cheque obtained from the revision petitioner/accused. Though the evidence of DW.3 is confined to the alleged loan transaction between Baskar and the revision petitioner/accused, for which a blank cheque and a blank promissory note were issued, his evidence is not helpful to prove the revision petitioner's case that one Ravichandran borrowed a sum of Rs.4,00,000/- from Baskar and Pappa @ Periakaruppan, for which also the revision petitioner gave three unfilled but signed promissory notes and three unfilled but signed blank cheques as guarantor for the repayment of the same. Even, if the evidence of DW.3 in this regard is disregarded, as rightly contended by the learned counsel for the revision petitioner/accused, the degree of proof needed on the part of the revision petitioner/accused to rebut the presumption under section 139 of the Negotiable Instruments Act, 1881 is not by proof beyond reasonable doubt and it is only on preponderance of probabilities. Such a proof can be made not only by positive evidence adduced on the side of the accused, but also by eliciting admissions from the prosecution witnesses and by pointing out the improbabilities of the prosecution case. Once it is done, the reverse burden is cast on the prosecution/complainant and the proof required from the complainant becomes one of proof beyond reasonable doubt.

24. In this case, as pointed out supra, there are many imponderables and improbabilities in the prosecution case. First of all, the respondent/complainant did not state when the amount was lent and whether the cheque was issued on the date of lending itself or on a subsequent day. The statutory notice (Ex.P4) simply states that the revision petitioner/accused borrowed a sum of Rs.4,00,000/- from the respondent/complainant and issued a cheque bearing cheque No.936888 dated 07.11.2008 drawn on State Bank of Hyderabad for the discharge of the said liability. Similar is the case of the contents of the complaint. In Ex.P7-reply notice, the revision petitioner/accused has taken a definite stand that he did not know the respondent/complainant and he never borrowed any amount from the respondent/complainant, much less a sum of Rs.4,00,000/- on 07.11.2008; that one of the blank signed cheques issued in favour of Baskar and Pappa @ Periakaruppan, could have been misused by filling it in the name of the respondent/complainant and that the respondent/complainant issued the notice, as a stooge in the hands of the above said persons.

25. An attempt has been made on the part of the respondent/complainant to show that the very fact that the revision petitioner/accused admits that Pappa @ Periakaruppan is the father-in-law of the respondent/complainant, makes his case that the respondent/complainant got acquaintance with the revision petitioner/accused on being introduced by his father-in-law Pappa @ Periakaruppan has become probable. It is pertinent to note that nowhere it was admitted by the revision petitioner/accused that before the receipt of Ex.P4- notice, he knew that Pappa @ Periakaruppan was the father-in-law of the respondent/complainant. On the other hand, in Ex.P7-reply notice, he has simply referred to Baskar, a police constable and Pappa @ Periyakaruppan as two persons, who had obtained signed blank cheques and signed blank promissory notes from the revision petitioner/accused as security for the repayment of the loan advanced to one Ravichandran, a friend of the revision petitioner/accused. Nowhere in the reply notice, the revision petitioner/accused has admitted that he had knowledge that Pappa @ Periakaruppan was the father-in-law of the respondent/complainant or that the respondent/complainant was known to him through the said Pappa @ Periakaruppan. On the other hand, there is clear evidence to the effect that only after the receipt of the notice and after the filing of the case, the revision petitioner/accused came to know that the said Pappa @ Periakaruppan was none other than the father-in-law of the respondent/complainant. Therefore, the above said contention raised on behalf of the respondent/complainant does not hold any water and the same deserves to be rejected. When such a clear stand has been taken by the revision petitioner/ accused, the respondent/complainant could have at least examined the the above said Pappa @ Periakaruppan and Baskar to prove that either there was no such transaction between those persons and the revision petitioner/accused or the transaction between those persons and the revision petitioner and the transaction between the respondent/complainant and the revision petitioner/accused are totally different.

26. Apart from failing to examine those persons, the respondent/complainant has also failed to prove that he had sufficient source of funds for lending such a huge amount. He would state that he was having a sum of Rs.4,00,000/- in his hands as the amount realised by the sale of paddy. No receipt to show that he had sold paddy for such an amount to prove his source of funds, has been produced. In addition, he has also pleaded loss of memory as to the date or month during which he raised the funds by selling paddy. The evidence of PW.1 is to the effect that he got the money little by little by selling his paddy. How long he was thus getting the amount from the sale of the agricultural produce, namely paddy, is not known. It is the further evidence of PW.1 that it was in October, the revision petitioner/accused approached the respondent/complainant for borrowing; that since he promised to repay the said amount, the respondent/complainant paid it as a hand loan. The relevant part of the evidence in the vernacular is extracted hereunder:

The above said version of PW.1 is nothing but an attempt to show that the amount was paid as a hand loan prior to the date of the cheque, without obtaining any document and subsequently on demand for repayment, the cheque in question was issued. As rightly pointed out by the learned counsel for the revision petitioner/accused, it is highly improbable that such a huge amount would have been lent by the respondent/complainant as a hand loan, without getting proper document evidencing the loan transaction.

27. If all the above said aspects are taken into consideration, we can come to the only conclusion that the revision petitioner/accused was able to establish the improbabilities of the case of the respondent/complainant and also prove his defence case by preponderance of probabilities and that the respondent/ complainant has not discharged his reverse burden of proving that the cheque was issued in his favour for a legally recoverable debt or other liability. The respondent/complainant has also failed to prove that the revision petitioner/accused has committed an offence under section 138 of the Negotiable Instruments Act, 1881 beyond reasonable doubt to dislodge the general presumption, which stands cast on the respondent/complainant on due rebuttal of the presumption under section 139 of the Negotiable Instruments Act, 1881. Both the courts below have not properly appreciated the evidence in this regard and the principles of law governing the degree of proof required for an accused facing a charge under section 138 of the Negotiable Instruments Act, 1881 to rebut the presumption under section 139 of the Act and the degree of proof required on the part of the complainant when such rebuttal takes place. This court is also of the opinion that the courts below would have arrived at a conclusion that the charge was not proved beyond reasonable doubt and the revision petitioner/accused was entitled to be acquitted, as he could not be found guilty of the offence with which he stood charged, had they properly appreciated the evidence and applied legal principles referred above correctly. For all the reasons stated above, this court comes to the conclusion that the judgment of the trial court convicting the appellant and that of the lower appellate court confirming the conviction, are defective, infirm and are liable to be interfered with and set aside by invoking the revisional powers of this court.

28. In the result, the criminal revision case is allowed. The judgment of the learned Additional District and Sessions Judge (Fast Track Court No.2), Madurai dated 21.09.2010 made in C.A.No.43/2010 confirming conviction recorded and the sentence imposed by the trial court, namely District Munsif cum Judicial Magistrate, Vadipatti in his judgment dated 07.05.2010 made in S.T.C.No.487/2008, is set aside. The revision petitioner is acquitted of the offence with which he stood charged. Fine amount collected if any, shall be refunded to the revision petitioner.

asr To The Additional District and Sessions Judge (FTC NO.2), Madurai