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TMI Blog2021 (1) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... to get back the cheque or by filing any complaint after sending notice to him. Therefore, the defense taken by the petitioner is not sustainable. The petitioner has not proved that the respondent has no capacity or means to lend the money and therefore, the contention of the learned counsel for the petitioner on the ground of means to lend the loan is not acceptable and the same is rejected. Once the petitioner had not denied the signature and also not established that cheque was given to one N.K.Krishnan and not to the respondent and on what date he borrowed money from N.K.Krishnan and repaid the money and on what date again he asked the cheque, the learned Magistrate and the District Judge has rightly convicted the petitioner by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner is the accused in C.C.No.4639 of 2017 and the respondent is the complainant. The respondent filed a private complaint before the learned Metropolitan Magistrate, Fast Track Court No.:II, Egmore, against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, which was taken on file in C.C.No.4639 of 2017 and after enquiry, the learned Magistrate found the petitioner guilty for the offence u/s. 138 of the Negotiable Instruments Act and vide order dated 01.10.2019 convicted and sentenced the accused to undergo one year simple imprisonment and the accused was directed to pay a compensation of ₹ 10,00,000/- to the complainant under Section 357 (3) Cr.P.C and in default of payment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, the respondent presented the cheque for three times and all the three times the cheque was returned with the endorsement Funds Insufficient . Therefore, he issued statutory notice on 25.04.2017 to the petitioner to pay the cheque amount with interest and the same was returned as 'poor intimation' and therefore he again sent notice on 06.05.2017 and the same was returned as 'unclaimed' and therefore, the respondent filed the private complaint before the learned V Metropolitan Magistrate, Egmore. 4.The case of the petitioner/accused is that he did not know the respondent earlier and he had no transaction with him. He never borrowed money from the respondent and he borrowed from one N.K.Krishnan and issued a cheque a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which he lent the money . He would further submit that the respondent has also not clearly stated the source of money for lending loan to the petitioner. It is the further submission of the learned counsel for the petitioner that the petitioner has established his defense by way of preponderance of probability, but the learned Magistrate as well as Additional Sessions Judge failed to consider the defense taken by the petitioner and wrongly came to the conclusion that the petitioner borrowed, but not repaid the same and issued cheque and when the cheque was presented for collection, it was returned on the ground funds insufficient and thereby convicted and sentenced the accused as stated supra, which warrants interference. 7. Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted in the written argument that the respondent sold the saw mill at ₹ 20 lakhs and got a share of ₹ 4,00,000/-. Further, it is stated by the respondent that he had been earning a sum of ₹ 60,000/- per annum when he was running saw mill and lent loan to the petitioner out of the income received from the saw mill, which fact was not denied by the petitioner. The petitioner has not proved that the respondent has no capacity or means to lend the money and therefore, the contention of the learned counsel for the petitioner on the ground of means to lend the loan is not acceptable and the same is rejected. 10. Further as far as date of issuance of cheque is concerned, the respondent has clearly stated in his complaint in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t while exercising the revisional jurisdiction, has to see whether there is any perversity in the order passed by the appellate court. A reading of the entire materials on record shows that the signature was not in dispute and the defense taken by the petitioner relating to issuance of cheque to N.K.Krishnan is not established and lending capacity of the respondent also not disproved. Therefore when the signature is not in dispute, the presumption under Section 139 of the Negotiable Instruments Act has come into picture. No doubt presumption need not be rebutted by direct evidence and it can be rebutted by preponderance of probability, the presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption. But, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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