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TMI Blog2021 (4) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... f probability - In the present case, as already pointed out, the accused has disputed the alleged loan transaction existed between him and the defacto complainant, but admitted the issuance of the cheque to the complainant's son-in-law. As rightly contended by the complainant's side, the accused, at no point of time, disputed the signature found in Ex.P.3 cheque. No doubt, the accused has taken another stand that the complainant was not having sufficient means or capacity to advance the loan, but the same was dealt with by the trial Court as well as the appellate Court. As already pointed out, the accused has taken a stand that Ex.P.3 cheque was issued only to the complainant's son-in-law Sidque and he has not produced any evidence to substantiate the same. Though P.W.1 and P.W.2 were subjected to cross examination, nothing was elicited by the defence in their favour - the defence has neither produced any materials nor shown any facts and circumstances to infer that the defence put forth by the accused is probable. This Court has no hesitation to hold that the accused has not rebutted the statutory presumption under Section 139 of Negotiable Instruments Act. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted a sale agreement therefor, that the accused has then received a sum of ₹ 5,000/- from the complainant and ₹ 5,000/- from one Saith Hussain and made an endorsement in the sale agreement, that the complainant's several requests to execute the sale deeds were not complied with, but on the other hand, the accused and some others had threatened the complainant, which forced the complainant to lodge a complaint before the District Collector on 12.08.2013 and after the settlement talks held at Vadakarai Police Station, the accused has issued another cheque bearing registration No.677733 for ₹ 2,30,000/-dated 15.04.2014, drawn on Indian Overseas Bank, Periyakulam Branch, that the complainant has then sent the cheque for collection, and the same was again returned dishonored, that the complainant has again preferred a complaint before the Deputy Superintendent of Police, Theni and on coming to know about the complaint, the accused has contacted the complainant and requested him to present the cheque again, that as per the request of the accused, the complainant has again presented the cheque for collection on 15.04.2014, but the cheque was again dishonored for want ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , dismissing the appeal and thereby confirming the judgment of conviction and sentence passed in S.T.C.No.1438 of 2014, dated 18.07.2016 by the learned Judicial Magistrate, Periakulam. Not satisfying with the judgment of the Appellate Court, the accused has come forward with the present revision. 8. Whether the concurrent judgments of conviction passed in Criminal Appeal No.46 of 2016, dated 14.04.2017 on the file of the Additional District and Sessions Court, Theni at Periyakulam, confirming the judgment made in S.T.C.No.1438 of 2014, dated 09.06.2016, on the file of the Court of the Judicial Magistrate, Periyakulam, is liable to be set aside ? is the point for consideration. 9.At the out set, it is necessary to refer Section 118 (a) and 139 of the Negotiable Instruments Act, which deal with the statutory presumption. 118. ... (a) of consideration ; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration ; 139.Presumption in favour of holder. It shall be presumed, unless the contrary i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , has given evidence reiterating the complaint contentions and he has deposed about the liability of the accused, issuance of cheques therefor, dishonour of cheques on the ground of 'funds insufficient', issuance of the statutory notice and failure of the accused to pay the amount within stipulated time. 12.According to P.W.1, P.W.2, who is his friend, was aware of the entire transactions, which also includes the issuance of the cheque and the consequent dishonour of the same. P.W.2 in his evidence before the trial Court would reiterate the version of the complainant regarding the borrowal of the loan by the accused, issuance of the cheques and consequent dishonour of the same. 13.It is pertinent to mention that the accused, after receipt of the legal notice, has not sent any reply notice and he has not offered any explanation for not sending any reply. As already pointed out, the accused has not chosen to adduce any evidence, but on considering the cross examination of P.W.1 and P.W.2, the defence of the accused can be summarized as follows ; The accused has issued a cheque in favour of the complainant's son-in-law and the complainant in an attempt to get mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea before the Court below, but the same were not considered. As already pointed out, the cheque was returned twice for the reason as 'funds insufficient' and not on any other ground, more particularly, on the ground that no such account was in favour of the accused, 18.No doubt, the accused has taken another stand that the complainant was not having sufficient means or capacity to advance the loan, but the same was dealt with by the trial Court as well as the appellate Court. As already pointed out, the accused has taken a stand that Ex.P.3 cheque was issued only to the complainant's son-in-law Sidque and he has not produced any evidence to substantiate the same. Though P.W.1 and P.W.2 were subjected to cross examination, nothing was elicited by the defence in their favour. 19.The defence has neither produced any materials nor shown any facts and circumstances to infer that the defence put forth by the accused is probable. 20.Considering the above, this Court has no hesitation to hold that the accused has not rebutted the statutory presumption under Section 139 of Negotiable Instruments Act. Hence, this Court decides that the finding of the trial Court as we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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