Madras High Court
C.Ponnusamy vs M.Anbu on 11 March, 2021
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.R.C.No.599 of 2013
IN THE HIGH COURT OF JUDICATURE AT
MADRAS
DATED : 11.03.2021
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.599 of 2013
C.Ponnusamy
S/o.Chinnan ... Petitioner
Vs.
M.Anbu
S/o.A.Mohanam ...Respondent
Prayer: Criminal Revision Petition filed under Section 397 and 401
Cr.P.C. to set aside the order made in C.A.No.305 of 2012 dated
28.02.2013 on the file of I Additional District and Sessions Judge,
Coimbatore, confirming the Judgement made in C.C.No.298 of 2011
dated 06.10.2012 on the file of Judicial Magistrate's Court, Fast Track
Court, Magistrate Level -II, Coimbatore.
For Petitioner : Mr.D.Arun Kumar (Physical Hearing)
for M.N.Balakrishnan
For Respondent : Mr.Saravana Kumar
Legal Aid Counsel through V.C.
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Crl.R.C.No.599 of 2013
ORDER
(The case has been heard through video conference) This Criminal Revision has been preferred challenging the Judgement of conviction dated 28.02.2013 passed by the I Additional District and Sessions Judge, Coimbatore, in C.A.No.305 of 2012 confirming the Judgement and conviction passed by the learned Judicial Magistrate, Fast Track Court, Magisterial Level -II, Coimbatore, finding the petitioner guilty of offence under Section 138 of Negotiable Instrument Act (for brevity N.I. Act) and convicted and sentencing the petitioner/accused to undergo one year Simple Imprisonment and to pay fine of Rs.5,000/- in default to undergo 3 months Simple Imprisonment.
2. For the sake of convenience, the petitioner and the respondent would be hereinafter referred as “accused” and “complainant” respectively.
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3. It is the case of the complainant that the accused had borrowed a sum of Rs.6 lakhs from him on 05.01.2009 and on the same day, he had issued a post dated cheque No.297282 dated 09.03.2009 drawn at ICIC Bank (Ex.P1). Thereafter, when the said cheque was presented for collection by the complainant on 09.03.2009 in his S.B. Account No.1345 at Canara Bank, Gudalore Branch, Coimbatore, it was returned by a memo with an endorsement “insufficient funds”(Ex.P2) on 14.03.2009 following which, the complainant issued a statutory demand notice dated 28.03.2009 (Ex.P3) by registered post and it was served on the accused vide acknowledgement date 08.04.2009 (Ex.P4). However, the accused had sent a reply only on 04.06.2009 (Ex.P5) after the complainant had initiated prosecution in C.C.298 of 2011 before learned Judicial Magistrate, Fast Track Court, Magisterial Level-II, Coimbatore, for offence under Section 138 of the Negotiable Instrument Act.
4. On appearance, the accused was questioned under Section 251 Cr.P.C. and he denied the accusations and sought to be tried. The complainant examined himself as PW.1 and marked Exs.P1 to P5. 3/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013
5. Thereafter, when the accused was questioned under Section 313 (1)(b) Cr.P.C. in respect of the incriminating circumstances against him, he denied the same and claimed to examine witnesses on his side. The accused examined himself as DW.1 and marked Exs.D1 to D6 and also examined DW2 / the Manager of the complainant's bank and marked Ex.D7/bank statement of the complainant for the period between 01.09.2008 and 30.04.2009.
6. After considering the evidence on record and after hearing both sides, the trial Court by Judgement dated 06.10.2012 found the accused guilty of offence under Section 138 of Negotiable Instrument Act and convicted and sentenced the accused to undergo one year Simple Imprisonment and to pay fine of Rs.5,000/- in default to undergo 3 months Simple Imprisonment.
7. Challenging the conviction and sentence, the accused had filed an appeal in C.A.No.305 of 2012 and the learned Judge by Judgement dated 28.02.2013, had dismissed the appeal while confirming 4/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 the Judgement passed by the trial Court. Against which, the present Criminal Revision Petition has been filed.
8. Heard Mr.Arun Kumar, learned Counsel appearing for the accused and Mr.S.Saravanakumar, Legal Aid Counsel, appearing for the respondent.
9. The learned Counsel for the accused would submit that as per the complainant's legal notice, the complainant is stated to be a Tailor by profession and he had acquaintance with the accused, whereas it is the case of the accused that the accused does not know him and that he is a stranger to him and the alleged cheque was actually handed over to one Shanthakumar in respect of a financial dealing between the accused and the said Shanthakumar and that the said Shanthakumar has handed over the cheque to the complainant and by misusing a cheque, the false complaint has been filed against the petitioner/accused. The accused had further explained the reason and the manner in which the cheque had got into the hands of the said Shanthakumar and the accused 5/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 had also questioned the financial capacity of the complainant in the reply notice. Further, the accused had specifically denied knowing the complainant and he had stated that he does not owe any money to the complainant at any point of time. He would submit that in this case admittedly, no proof has been filed by the complainant to show that a sum of Rs.6 lakhs was paid to the accused. The accused had while examining himself as DW1, let in evidence to show that he was not in the town on the date of alleged borrowal and issuance of cheque i.e. on 05.01.2009. Further, in order to prove that the complainant was not having financial capacity to lend such a huge amount of Rs.6 lakhs, the accused had also examined the Manager of the complainant's Bank and proved that at no point of time the complainant was having more than Rs.2,000/- in his account. Further, it is the admitted case of the complainant that he was having only one bank account and that part of the amounts were advanced/transferred through bank transactions only and in such circumstances, the accused by examining the bank Manager of the complainant and marking his statement of accounts, had rebutted the presumption to show that the complainant was not having financial 6/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 capacity and the consideration had not passed and that the complainant had not paid the said sum of Rs.6 lakhs as stated above and the cheque was not issued towards any legally enforceable debt, whereas the courts below have failed to take into consideration the cogent evidence let in by the petitioner/accused to rebut the presumption.
9.1. The learned Counsel for the accused would reiterate that though it is not necessary for the accused to get into the witness box to support and prove his defence, the accused had taken every sincere steps to prove that the complainant was not having financial capacity to lend Rs.6 lakhs. Though, Section 118(a) and 139 of Negotiable Instrument Act mandates a presumption that the cheque was for the discharge, in whole of in part, of any debt or other liability, the presumption under Section 139 of Negotiable Instrument Act is a rebuttable one and the accused has to only raise a probable defence. Accordingly, the accused had raised a probable defence by examining himself as DW.1 and rebutted the presumption under Section 139 of Negotiable Instrument Act. The standard of proof for rebutting the presumption under Section 7/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 139 of Negotiable Instrument Act is that of preponderance of the probability and once the accused rebutts the presumption, the burden and onus shifts on the complainant to prove that he has paid the amount to the accused, whereas in this case, the complainant has failed to prove his case either by oral or by documentary evidence that he had paid the amount of Rs.6 lakhs to the accused. Further, the Courts below have failed to take into consideration the evidence let in by the accused that the accused was not present at Coimbatore on the alleged date of receiving the amount and handing over the post dated cheque i.e. 05.01.2009. He would submit that the trial Court without properly analysing the materials on record have rendered perverse findings. The learned Counsel for the accused would further submit that the accused had while cross examining the complainant, by marking Exs.D3 to D6 proved that the complainant without having financial capacity, by misusing the cheques given to other person had filed similar complaints against two other persons claiming Rs.6 lakhs each from them, thereby totalling to Rs.18 lakhs in all. When the complainant was not having more than Rs.2,000/- in his account at any point of time, his financial 8/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 capacity to lend Rs.18 lakhs is dubious and doubtful and thereby, the accused had proved that the cheque was not issued for discharge of a legally enforceable debt.
9.2 In support of his contention, he would rely on Judgement of the Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 5SCC 418 and the relevant paragraphs in 23 to 29 is extracted hereunder;
23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can 9/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 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.
(iv) That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the Accused to come in the witness box to support his defence.
24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised Under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the Accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs. 25,000/- taken by the Accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by 10/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs. 4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs. 4,50,000/- being admitted in the year 2010 and further payment of loan of Rs. 50,000/- with regard to which complaint No. 119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex. D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs. 18 lakhs. During his cross-examination, when financial capacity to pay Rs. 6 lakhs to the Accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the Accused, which shifted the burden on the complainant to prove his financial capacity and other facts.
25. There was another evidence on the record, i.e., copy of plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of loan of Rs. 7 lakhs given to one Balana Gouda in December, 2009. Thus, there was evidence on record to indicate that in December, 2009, he gave Rs. 7 lakhs in sale agreement, in 2010, he made payment of Rs. 4,50,000/- towards sale consideration and further he gave 11/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 a loan of Rs. 50,000/- for which complaint was filed in 2012 and further loan of Rs. 6 lakhs in November, 2011. Thus, during the period from 2009 to November, 2011, amount of Rs. 18 lakhs was given by the complainant to different persons including the Accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the Accused, the Accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs. 8 lakhs only. The High Court observed that though the complainant is retired employee, the Accused did not even suggest that pension is the only means for survival of the complainant. Following observations were made in Paragraph 16 of the judgment of the High Court:
16. Though the complainant is retired employee, the Accused did not even suggest that pension is the only means for survival of the complainant. Under these circumstances, the Trial Court's finding that the complainant failed to discharge his initial burden of proof of lending capacity is perverse.
26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the 12/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 complainant has not mentioned as to on which date, the loan of Rs. 6 lakhs was given to the Accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post dated cheque was given to him in November, 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant especially Para 1 of the complaint, which is extracted as below:
1. The Accused is a very good friend of the complainant. The Accused requested the Complainant a hand loan to meet out urgent and family necessary a sum of Rs. 6,00,000/- (Rupees Six Lakh) and on account of long standing friendship and knowing the difficulties, which is being faced by the Accused the complainant agreed to lend hand loan to meet out the financial difficulties of the Accused and accordingly the Complainant lend hand loan Rs. 6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honored. But to the surprise of the Complainant on presentation of the same for collection through his 13/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 Bank the Cheque was returned by the Bank with an endorsement "Funds Insufficient" on 01-03-2012.
27. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained.
The High Court was unduly influenced by the fact that the Accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial court, Appellant-Accused has not denied his signature on the cheque.
28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs. 6 lakhs given to the Accused, within 02 years, amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial court's findings can be termed as 14/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence. This Court had occasion to consider the expression "perverse" in Gamini Bala Koteswara Rao and Ors. v. State of Andhra Pradesh through Secretary, MANU/SC/1669/2009 : (2009) 10 SCC 636, this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence. In Paragraph No. 14 following has been held:
14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr. Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so.15/26
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29. High Court without discarding the evidence, which was led by defence could not have held that finding of trial court regarding financial capacity of the complainant is perverse. We are, thus, satisfied that Accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. We, thus, are of the view that judgment of the High Court is unsustainable.
9.3. The learned Counsel for the accused would further reiterate that the complainant having admitted and marked the reply notice as Ex.P5 and having stated that the amounts were advanced/transferred through bank transactions, ought to have proved it especially, when the burden having shifted not only by the mere denial of the accused, but by adducing sufficient evidence to prove that the complainant was not having sufficient financial capacity to lend such a huge amount.
10. In reply, the learned Counsel appearing for the complainant would submit that it is the case of the complainant that the accused is 16/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 known to him and based on the acquaintance, the accused had borrowed a sum of Rs.6 lakhs from him on 05.01.2009 for his transport business and family expenses and on the same day, he had issued a post dated cheque dated 09.03.2009 for a sum Rs.6 lakhs. Thereafter, the cheque was presented for collection on 09.03.2009 and it was dishonoured on 14.03.2009 for the reason “insufficient funds” and thereby, within the statutory period, the complainant had issued a legal notice to the accused and it was also served on the accused. However, the accused did not reply immediately and that the reply had been sent after about two months. He would submit that there is a presumption in favour of the complainant as per Section 118(a) and 139 of Negotiable Instrument Act. Though a claim had been made by the accused that the complainant was not having the financial capacity to lend such a huge amount to the accused, it is the case of the complainant that the amounts were borrowed from his friends and given to the accused and thereby the Courts below finding that the complainant has proved his case, found the accused guilty and convicted him.
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11.This Court is aware of the legal position that the revisional Court cannot re-appreciate the evidence like an Appellate Court, however, when there is wrong appreciation of facts and when the Courts below have not properly analysed the materials and evidence, the power of this Court to go into evidence has been preserved by Sections 397 and 401(1) of Cr.P.C. to satisfy itself as to the correctness, legality or proprietory of any finding. This Court carefully perused the evidence and materials on record.
12. The complainant in his evidence has deposed about running a tailoring shop and that he is known to the accused for about 15 years and that on 05.01.2009, he had given a loan of Rs.6 lakhs to the accused for the business of the accused and on the same day, the accused had given a post dated cheque dated 09.03.2009 for the same amount. Thereafter, the cheque was presented for collection on 09.03.2009 and that it has been returned on 14.03.2009 stating as “insufficient funds”. Thereafter, the complainant had sent a legal notice to the accused dated 28.03.2009 and it had been received by the accused on 08.04.2009. Though, the accused had not sent any reply immediately, he had sent a 18/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 reply on 04.06.2009 denying the issuance of cheque to the complainant and explaining the reason how the cheque could have got into the hands of the complainant and also questioning the financial capacity of the complainant to lend such a huge amount to the accused.
13. While coming to the defence of the accused, the accused had sent a reply to the complainant stating that he does not know the complainant and that he along with one Shanthakumar was running a small time travel agency business with few vehicles and due to loss in the business, they had wound up the business and a settlement was arrived at and that in lieu of the settlement, the accused had to pay Rs.2 lakhs to the said Shanthakumar which was agreed to be paid as per the agreement of settlement. Thereby, as a security, the cheque was handed over to the said Shanthakumar by the accused. Though in the initial part of cross examination, the complainant had denied having known the said Shanthakumar, in the later part of the cross examination, he has accepted that the said Shanthakumar and he are living very close by. Further, in this case, the complainant had categorically admitted that all the money 19/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 transactions by him were done through bank transactions only and that he was having only one bank account, whereas at the later point of time, he had stated that the amounts were paid by his friends.
14. Insofar as the accused is concerned, the complainant had stated that the entire transactions with the accused had been done through bank accounts, whereas when confronted with Exs.D3 to D6 with regard to the cases registered against one Sudarsan and Devi Priya, and Ex.D7 (the bank statement of the complainant for the period between 01.09.2008 and 30.04.2009) the complainant had stated that the amounts were given by his friends and thereby creating a doubt with regard to the financial capacity of the complainant in lending money. Apart from the above defence, the accused had specifically taken a defence that he was not present in Coimbatore on the alleged date of borrowal i.e. 05.01.2009 and in order prove the same, he had marked 2 trip sheets dated 02.1.2009 and 05.01.2009 as Exs.D1 and D2 in respect of the tourist car owned by him and had stated that he had gone to Goa on the particular date and that he had neither borrowed any money, nor issued any cheque to the 20/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 complainant as claimed by him. Further, in order to prove that the complainant was not having the financial capacity to lend such a huge amount, he had examined the Manager of the complainant's bank and also marked the statement of accounts of the complainant relating to the period between 01.09.2008 to 13.04.2009 to prove that during the relevant period, he was not having more than Rs.2,000/- at any point of time and thus, he could have not lent the said sum of Rs.6 lakhs to the accused.
15. Admittedly, neither any oral nor any documentary evidences had been adduced by the complainant to prove that such a huge amount of Rs.6 lakhs was paid to the accused. Though, the complainant had later stated that the amounts were arranged through his friends, none of his friends were examined to prove the same. Further, it is also highly doubtful that such a huge amount could have been lent to the accused on the strength a post dated cheque. The accused had probabilised his defence by preponderance of probability by letting evidence to prove that the complainant was not having financial capacity 21/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 to pay/lend such a huge amount of Rs.6 lakhs and that the cheque was not drawn for consideration and it was not issued for the discharge, in whole or in part, of any debt or liability.
16. The Hon'ble Apex Court in Kumar Exports Vs. Sharma Carpets reported in (2009)2 SCC 513: 2009 (1) CTC 552 in paragraph No.11 has held as follows;
11.The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 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 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 22/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 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 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 accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and 23/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue. “
17. Applying the propositions of the law based on the above Judgements and analysing the evidence and materials on record, this Court is of the opinion that the accused has discharged the burden under Section 118(a) and 139 of the Negotiable Instrument Act satisfactorily by probablising valid defence and when the burden having been discharged, the evidential burden had shifted and moved on to the complainant which, he had failed to prove and therefore, the presumption under Section 118(a) and 139 of the Negotiable Instrument Act will not come again to the aid or rescue of the complainant. The Courts below have failed to appreciate the evidences on record with proper perspectives and have erred in convicting the petitioner/accused on perverse finding. Necessarily, the petitioner/accused has to be acquitted. 24/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013
18. In the result, this Criminal Revision case is Allowed. The Judgement of conviction dated 28.02.2013 passed by the I Additional District and Sessions Judge, Coimbatore, in C.A.No.305 of 2012 confirming the Judgement of conviction and sentence passed by the learned Judicial Magistrate, Fast Track Court, Magisterial Level -II, Coimbatore, are set aside. The petitioner/accused is acquitted from all charges levelled against him under Section 138 of N.I. Act. The bail bond if any executed by the petitioner/accused, shall stand cancelled and the fine amount, if any paid by the petitioner/accused, shall be refunded to him.
19. Registry is directed to send the original records to the respective Courts forthwith. Mr.S.Saravana Kumar, Legal Aid Counsel is entitled for the fees by the Legal Aid.
11.03.2021 ksa-2 25/26 https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.599 of 2013 A.D.JAGADISH CHANDIRA,J.
Ksa-2 To
1. The I Additional District and Sessions Judge, Coimbatore,
2. The Judicial Magistrate, Fast Track Court, Magisterial Level -II, Coimbatore.
Crl.R.C.No.599 of 2013
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