The revision petitioner, the accused in S.T.C.No.45 of 2016 has filed this petition to set aside the Judgment of the Appellate Court passed by the III Additional District & Sessions Court, Thanjavur @ Pattukottai, in C.A.No.23 of 2019, dated 12.10.2022 confirming the Judgment in in S.T.C.No.45 of 2016 dated 31.01.2019 on the file of the Judicial Magistrate Court (FTC), Pattukottai.

2.The petitioner and the respondent are close relatives. The petitioner approached the respondent on 10.02.2015, to arrange a sum of Rs.25,00,000/-. The respondent was not having such huge amount and, therefore, he arranged the said amount by borrowing a sum of Rs.25,00,000/- from various persons namely Gnanasekaran, Duraisamy, and Elanchezhian. Thereafter, the respondent paid the said amount to the petitioner on 12.12.2015. The petitioner received the amount with an undertaking to repay the amount within a month. It is the case of the respondent that the petitioner already handed over the sale deed dated 23.11.2011, in favour of the respondent's wife and the sale deed relating to the path way to the respondent. Thereafter, the petitioner issued a cheque dated 16.03.2015 to the respondent for the above said amount of Rs.25 lakhs. On 06.04.2015 the same was presented for collection and the same got dishonoured 2/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 on 09.04.2015 as “Funds Insufficient”. Therefore, the respondent issued the statutory notice under Section 138 of Negotiable Instruments Act, on 21.04.2015. The petitioner received it on 22.04.2015 and he sent reply notice on 30.04.2015. In the reply, he denied the above said allegation of receipt of the amount. Thereafter, the petitioner filed a complaint under 138 of NI Act before the Judicial Magistrate Court (FTC), Pattukottai. The same was taken cognizance in S.T.C.No.45 of 2016. After taking cognizance, summons was issued to the petitioner. After the appearance of the petitioner, he denied borrowal of amount, during the questioning 251 of Cr.P.C ., and he pleaded not guilty. He stood for trial.

3.To prove the case, the respondent examined four witnesses P.W.1 to P.W. 4, including himself as P.W.1 and exhibited 6 documents as Ex.P.1 to Ex.P.6. The learned trial Judge thereafter questioned the accused under Section 313 Cr.P.C., by putting the incriminating evidence available from prosecution witnesses and documents against him and he denied the same as false and then, the case was posted for examination of the witnesses on the side of the accused. On the side of the accused, the accused examined himself as D.W.1 and exhibited 16 documents as Ex.D1 to Ex.D16.

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4.The learned trial Judge, on considering the oral and documentary evidence, convicted the petitioner for the offence under Section 138 of NI Act and sentenced him to undergo simple imprisonment for one year and to pay a Compensation of Rs.25,00,000/- to the complainant within a period of one month from the date of receipt of judgment dated 31.01.2019.

5.Aggrieved over the same, the petitioner filed the Criminal Appeal in C.A.No.23 of 2019 on the file of the III Additional District and Sessions Court, Thanjavur @ Pattukottai. The learned Appellate Judge also confirmed the same. Hence, the petitioner preferred this revision before this Court.

6.The learned counsel for the petitioner made the following submissions:

To prove the same, the petitioner produced number of documents namely Exs.D1 to D6 and also he himself examined as D.W.1. From the above material, his case was proved by the preponderance of probability. The cheque issued to the respondent is without “MICR” number and it is clearly proved that the cheque was old one which was entrusted with the said Senthilkumar and the same was subject matter of the criminal complaint made against Senthilkumar, which was marked as Ex.D16. The same was not properly considered. Both the Courts below failed to see that there was no explanation on the side of the respondent as to how the original document entrusted with the respondent was filed before the Civil Court in O.S.No.117 of 2014. Therefore, there is a conspiracy between all the above persons and false case was filed against the petitioner. The petitioner issued the reply notice and also substantiated his plea by examining himself and 5/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 also gave a detailed explanation under Section 313 Cr.P.C. The same was not properly considered by the Court below. In the said circumstances, the presumption under Sections 138 and 139 of NI Act does not arise ie., the foundational fact has not been proved by the respondent and hence, presumption under Section 139 of NI Act was wrongly invoked by the Courts below. The Courts below failed to see that it is not the duty of the petitioner to prove his case beyond reasonable doubt and he gave a plausible explanation and the same was proved through the document marked on the side of the defence and also through D.W.1 and from the evidence of cross examination of witnesses.

6.2.The learned counsel further submitted that on reading the evidence of P.Ws.2, 3 and 4, it is clear that the they gave money to the petitioner and hence, the case of the complainant/respondent that he borrowed money from the above said persons and handed over to the petitioner is not acceptable one. In all ways, both the Courts below failed to appreciate the same in proper manner and hence, both the Courts below erroneously recorded the conviction. In this Case, both the Courts below committed error of law by not properly appreciating both the documents and oral evidence and specifically, his explanation under Section 313 Cr.P.C. Therefore, he seeks for interference in the concurrent findings made by 6/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 both the Courts below and he placed reliance of the following judgments:

7.The learned counsel appearing for the respondent submitted that the Courts below considered all the defence and given a concurrent finding without any perversity and this Court has no jurisdiction to interfere under Sections 397 r/w 401 of Cr.P.C .

7.1.The learned counsel further submitted that both the Courts below appreciated the evidence of P.Ws.1 to 4 and D.W.1 and perused the document filed by the both the parties and gave concurrent findings that through the respondent has no means to pay the amount, he borrowed the said amounts from various persons and handed over the same to the petitioner. To prove the borrowal, he examined P.Ws.2 to 4. Therefore, the source of money has been established. The case of the petitioner that the cheque was not issued an the alleged because the MICR number is not available on the cheque. Even at the 7/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 time he issued many cheques to various persons without “MICR”. Therefore, the said plea was negatived by the both the Courts below and the same was not liable to be interfered. In the complaint, it is specifically stated by the plaintiff in O.S.No.117 of 2014, the said Padmavathi sought the original document from him and he handed over the same to file a suit against the petitioner and other persons. Therefore, he gave the explanation and the explanation was accepted by the both the Courts below. Hence, there is no necessity to interfere with the same.

7.2.The learned counsel further submitted that the foundational facts ie, issuance of cheque was proved through the legal evidence. Hence, it is the duty of the petitioner to dispel the same under Sections 138 and 139 NI Act. The accused even though appeared and marked number of documents, the same was appreciated by the both the Courts below stating that the accused has not established his defence by preponderance of probability. Therefore, both the Courts below appreciated the same and convicted the petitioner and sentence was imposed under Section 138 of NI Act and the same was not liable to be interfered. In support of this contention he placed the following judgments:

8.This Court considered the rival submissions made on either side and also perused the materials available on record and precedents relied upon by them.

9. In this case, from the detailed submission made by both the counsel the following questions are framed for consideration:

10.1.The petitioner initially purchased a land in S.No.68/1A and Senthilkumar made arrangements to purchase the said land. He falsely stated as if the said land has pathway. Therefore, the petitioner had some disputes with the said Senthilkumar. Subsequently, the petitioner purchased the pathway by negotiating with pathway owners namely Mokana, Jeevanantham, Baskar, Meyyanathan, Babu and Vasanthi. Subsequently, the land value got increased, due to the facility of pathway. In the said dispute, the original vendor and Senthilkumar conspired together and filed a suit in O.S.No.117 of 2014 through Padmavathi for declaration and injunction of the said property. In the suit, it is specifically prayed for declaration of the sale deed executed by the husband of the Padmavathi as null and void. In the said suit, the original document was marked. According to the petitioner, original document and files, all were entrusted with Senthilkumar to purchase the property. To consider the said defence, it is relevant to extract the following dates and events: 10/29

Prior to 2014 The petitioner handed over the said two sale deeds in the custody of the respondent and asked to arrange the debt amount On the basis of the purchase, he promoted a layout value of the property substantially increased.

22.02.2014 The said Padma filed a suit against the petitioner's wife and the said Senthilkumar to cancel the sale deed 24.06.2014 The petitioner's wife laid a complaint against Senthilkumar, Karnan about their Criminal intimidation and their action of threatening to demand the execution of the sale deed 11.08.2014 The petitioner's wife filed a written statement. 10.02.2015 The respondent/complainant pleaded that the petitioner in order to purchase the pathway to the properties, he was in need of Rs.25,00,000/- and requested to pay the debt.

Duraisamy(P.W.3) and Elanchezian (P.W.4) and paid the same to the petitioner on 12.12.2015. The petitioner also handed over to the original sale deed dated 23.11.2011 11/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 16.03.2015 Subsequently, in order to repay the said amount, the petitioner allegedly issued a cheque dated 16.03.2015, for the value of Rs.25,00,000/-

06.04.2015 The said cheque was presented for collection and the same was dishonoured on 09.04.2015 as funds insufficient. 21.04.2015 Statutory notice was issued to the petitioner on behalf of the respondent under Section 138 of the Negotiable Instruments Act.

30.04.2015 Reply notice was issued by the petitioner.

11.It is clear from the above events and connected records that the petitioner purchased the land in S.No.68/1A through sale deed dated 23.11.2011. After that he purchased the pathway from the pathway owners namely Mokana, Jeevanantham, Baskar, Meyyanathan, Babu and Vasanthi, by negotiating with them at the cost of payment of sale consideration as plots. Subsequently, the land value substantially increased. Senthilkumar made a demand. The same was refused by the petitioner. Therefore a dispute arose between the petitioner and the said Senthilkumar. Senthilkumar insisted to relinquish the right over the property and threatened to execute the sale deed. Hence the petitioner's wife made a complaint before the jurisdictional police station relating to the criminal intimidation committed by Senthilkumar and the same is still pending. D.W.1, namely, the petitioner narrated the above events cogently and deposed that the cheque was not issued in favour of the respondent. It is well settled principle 12/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 that the accused need not prove his defence beyond reasonable doubt. It can be proved, as per the Supreme Court Judgment by preponderance of probability.

In Basalingappa v. Mudibasappa , (2019) 5 SCC 418 at page 432 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

25.4. That it is not necessary for the accused to come to the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

25.5. It is not necessary for the accused to come in the witness box to support his defence.

In Kumar Exports v. Sharma Carpets , (2009) 2 SCC 513 at page 520

20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular 13/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not 14/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act.

The Hon'ble Suprme Court in Rangappa v. Sri Mohan , (2011) 1 SCC (Cri) 184 at page 454

28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139 , the standard of proof 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.

15/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 Further, the petitioner specifically filed detailed explanation under Section 313 of Cr.P.C. The Hon'ble Supreme Court has held in the following cases the Court should have considered the explanation furnished by the accused during the course of the proceedings under Section 313 of Cr.P.C, and the non consideration is a ground for an acquittal.

In Reena Hazarika v. State of Assam , (2019) 13 SCC 289 at page 295

19. Section 313 CrPC cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) CrPC. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) CrPC the Court is duty-bound under Section 313(4) CrPC to consider the same. The mere use of the word “may” cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be 16/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 CrPC, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing.

20. Unfortunately neither the trial court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 CrPC to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in HateSingh Bhagat Singh v. State of Madhya Bharat [Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951 SCC 1060 : AIR 1953 SC 468 : 1953 Cri LJ 1933] observing as follows: (AIR p. 471, para 26) 17/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 “26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess the evidence in an appeal here, but because there has been in this case a departure from the rule that when an accused person puts forward a reasonable defence which is likely to be true…. then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit. …” In Jai Prakash Tiwari v. State of M.P. , reported in 2022 SCC OnLine SC 966

30. Moreover, it is the solemn duty of the courts below to consider the defence of the accused. The same must be considered with caution and must be scrutinised by application of mind by the judge. The Court may accept or reject the same, however it cannot be done cursorily. The reasoning and the application of mind must be reflected in writing. However, from the observations extracted above, it is clear that the courts below have failed to undertake this solemn duty. Rather, the evidence of the accused has been dealt by the Court in a casual manner.

18/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 In this case, the petitioner gave the following explanation in the questioning under Section 313 of Cr.P.C.:

After the complainant's evidence, the incriminating evidence and circumstance was put to the Accused in elaborate, under Section 313(1)(b) of the Code, for which he pleaded that “The evidence is false and it is a false case. He doesn't know about P.W. 3 Gnanasekar. P.W.3 Duraisamy and the accused are Business Partners but there is no outstanding dues with him. The accused know about P.W.4 Elanchezhiyan and he converted the land as housing plots. But there is not transaction with him, now due to the escalation of the land value. The complainant and P.W.2 to P.W.4 attempted to grab money from the accused. The disputed cheque is a old Non MICR cheque. The accused stated that he never borrowed any amount from the complainant and never issued the cheque to him. When the accused in Singapore he issued blank cheque to his wife. After he returned to India in the year of 2011. He obtained new CTS cheque book from his bank, moreover the accused paid the amount to the complainant through new cheque book. There is a misunderstanding between the complainant and the accused.

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12.To prove the same, he examined himself as D.W.1 and marked Ex.D1 to Ex.D14 and also relied the evidence of P.W.2, P.W.3 and P.W.4 to prove his defence that the respondent has no means to give the huge amount of Rs. 25,00,000/-. But, the Courts below has not properly considered this. Hence, this Court applying the above principle laid down by the Hon'ble Supreme Court in Reena Hazarika V. State of Assam reported in 2019 13 SCC 289 at Page 295 and in Jai Prakash Tiwari v. State of M.P. reported in 2022 SCC Onlince SC 966 acquit the petitioner.

13.It is settled law that defence of the accused may be proved either through examination of the accused and filing defence documents or through cross examination of the witnesses and relying on documents. In this case, the accused raised a plausible defence and to establish the same, he examined himself as a defence witness, namely, D.W.1 and deposed before the Court below and narrated the above events cogently and also marked supporting documents under Ex.D.1 to Ex.D.16. Further, he was subjected to incisive cross examination and nothing was elicited to disbelieve his cogent evidence. The accused gave explanation, during the questioning under 313 Cr.P.C that he never met the complainant and asked to give money. He also questioned the source of 20/29 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 the huge amount of Rs.25,00,000/-. P.W.2, P.W.3 and P.W.4 were examined on the side of the complainant to corroborate the version of P.W.1 that he borrowed the amount from P.W.2, P.W.3 and P.W.4 and handed over the same to the petitioner. To consider the said plea, it is relevant to extract the material portion of the evidence of P.W.2, P.W.3 and P.W.4, which are as follows:

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.1272 of 2022 K.K.RAMAKRISHNAN, J.

vsg/sbn Pre-delivery Order made in Crl.R.C(MD). No.1272 of 2022 and Crl.M.P(MD). No.16057 of 2022 19.03.2024 29/29 https://www.mhc.tn.gov.in/judis