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TMI Blog2021 (1) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... issued a cheque without sufficient amount in his account. Therefore, the respondent issued a legal notice on 17.11.2014 calling upon the payment of Rs. 5 lakhs within 15 days from the date of receipt of the notice. The petitioner received the notice on 18.11.2014 and gave a reply dated 18.11.2014 with false allegations. Since, he failed to pay the cheque amount within 15 days, the complaint was filed. 3. After the petitioner entered appearance, he was questioned with regard to the offence alleged against him. He denied the offence and the trial was commenced. During the trial, the respondent was examined as PW.1 and Exs.P.1 to P.7 had been marked. On the side of the petitioner DW-1 to DW-4 were examined and Exs.D.1 to D.4 were marked. On considering the oral and documentary evidence, the learned Judicial Magistrate, found the petitioner guilty under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 5,000/- in default to pay fine, he has to undergo 15 days simple imprisonment. Against the said judgment, the petitioner has preferred Criminal Appeal No.133 of 2016, on the file of II Additional Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appa Vs. Mudibasappa] for the preposition that the accused is not required to prove his case beyond reasonable doubt but it is enough if he proves his case by preponderance of probability. 6.On the other hand, the learned counsel for the respondent submitted that the Income Tax returns shows that the respondent has capital account worth Rs. 20 lakhs and above. The case of the petitioner with regard to the chit transaction is false and not proved by any acceptable evidence. In fact there is no whisper about the chit transaction in the reply notice. When the petitioner said that he did not know the respondent, how did he know the son of the respondent and examined him as a witness. The petitioner accepts the signature in the cheque. The respondent has proved the loan transaction, issuance of cheque towards payment of loan and the return of cheque without sufficient funds. Both the courts below have rightly convicted and sentenced the petitioner. Therefore, the learned counsel for the respondent prayed for confirming the judgment of the courts below and dismissal of this Revision Petition. 7.Point for consideration in this Revision Petition is whether the Judgments of courts below s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that those receipts were given in the chit transaction. But, he denied those receipts and said that he did not write those receipts. The account statement and cheque issue register with regard to the cheque in person were marked as Exs.D.1 and D.2 through D.W.1 - Manager of the Karnataka Bank, Ex.D.3 is produced to show the deposit of amounts in the account of Sathyan by the petitioner towards chit transaction. 10.On the side of the respondent he was examined as PW.1. The returned cheque was marked as Ex.P.1.Return memo, advocate notice, postal receipt, acknowledgement card, reply notice and income tax statement of the respondent are marked as Exs.P.2 to P.7. 11.From the evidence produced in this case, it is clear that the petitioner admitted the cheque as his cheque and the signature in the cheque as his signature. Admittedly, the cheque had been returned, since there was no funds in the account of the petitioner when the cheque was presented for collection.The point to be considered is whether the respondent has sufficient means to lend a sum of Rs. 5,00,000/- to the petitioner and the cheque was issued to discharge a loan? The respondent contends that he has sufficient means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld to have rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same. The learned counsel for the petitioner relied on the rulings reported in (2010) 11 SCC 441 [Rangappa Vs. Sri Mohan] and the judgment of the Supreme Court of India in Crl.A.No.636 of 2019 dated 09.04.2019 in Basalingappa Vs. Mudibasappa case for the same position. 13.The ruling reported in (2015) 1 SCC 99 (cited supra) is relied by the learned counsel for the petitioner for the position that when the lender's credit worthiness is questioned and when it is doubtful about his capacity to lend money, the lender should prove his financial capacity to lend the money. If he did not prove his capacity to lend the money, the case has to be necessarily fail. 14.The learned counsel for the respondent has not produced any authorities in support of his case. In the light of the submissions made in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner. He stated that he had mentioned in the notice and in the complaint about the reason for borrowing. However nothing is said about the reason for the borrowing, except saying that the petitioner borrowed a sum of Rs. 5,00,000/-. Though he denied the suggestion that he had no means to pay Rs. 5,00,000/- to the petitioner, he did not produce any other acceptable evidence apart from his oral evidence, to show that he had means to lend sum of Rs. 5,00,000/- to the petitioner. He stated that he lent a sum of Rs. 5,00,000/- to the petitioner only on the basis of the cheque and he did not receive any other documents to evidence the said loan transaction. 16.It is seen from the evidence of PW-1 that he did not know the petitioner prior to lending a huge sum of Rs. 5,00,000/-. He came to know about the petitioner through one Rajendran. He did not even know the address of the said Rajendran. He did not get any supporting document like a promissory note to evidence the loan transaction. These aspects strengthens the case of the petitioner that the cheque he gave to Sathyan as a security for chit transaction is misused through the respondent. It is true that the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspects while proceeding to dispose the case and heavily placed reliance on the presumption under section 139 of the Negotiable Instruments Act, without minding that this provision 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. However, this presumption does not extend to the existence of a debt also. Existence of a legally enforceable debt is not a matter of presumption under section 139 of Negotiable Instruments Act. In view of the reasons stated above, it could be gathered that the respondent has miserably failed to prove that he had means to lend a sum of Rs. 5,00,000/- to the petitioner,lent that sum and the cheque in question was issued for discharging that debt. Therefore, this court concludes that the judgments of the court below in convicting and sentencing the petitioner under Section 138 of Negotiable Instruments Act is not in consonance with established fats and position of law and has to be necessarily set aside. In this view of the matter, the judgment of the Learned II Additional Sessions Judge, Erode in C.A.No.133/2016, which confirmed the judgment of Learned Judicial Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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