(Prayer: This Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, to set aside the judgment of acquittal dated 15.03.2024 on the file of learned Judicial Magistrate, Thiruchendhur in S.T.C.No.150 of 2023 and convict the accused under Section 138 of Negotiable Instrument Act according to law by allowing the above appeal.)

1. The Criminal Appeal is directed against the judgment made in S.T.C.No.150 of 2023 dated 15.03.2024 on the file of the Court of Judicial Magistrate, Tiruchendur, in acquitting the respondent / accused for the offence under Section 138 of the Negotiable Instruments (hereinafter referred as 'NI') Act.

2. The appellant, who is the complainant, filed a complaint under Section 200 Cr.P.C. against the respondent / accused for the alleged offence under Section 138 r/w 142 of the NI Act.

3. For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status / ranking in the trial Court.

4. The case of the complainant is that the accused and the complainant were school day friends and were belonging to same place. The accused approached the complainant on 02.11.2022 and requested him to give a loan of Rs.2,50,000/- for his urgent family expenses and agreed to return the same within few months. Considering the request of the accused, the complainant, by utilizing the agricultural income and the loan amount obtained by pledging the jewels, advanced loan amount of Rs.2,50,000/- and the accused having received the same issued a postdated cheque dated 05.01.2023 for Rs.2,50,000/- drawn on Canara Bank, Attur Branch requesting him to present the cheque and encash the same. Believing the words of the accused, the complainant presented the cheque for collection on 05.01.2023 through his banker Tamilnad Mercantile Bank, Attur Branch but the cheque was returned dishonored as funds insufficient vide banker's memo dated 07.01.2023. Hence, the complainant sent a legal notice dated 13.01.2023 to the accused demanding him to pay the amount covered by the cheque. The accused having received the notice sent a reply notice on 01.02.2023 with false and untenable allegations. Since the accused has not paid the cheque amount within stipulated time, the complainant was constrained to file the above complaint

5. The learned Judicial Magistrate, Tiruchendur, upon receiving the complaint, recorded the sworn statement of the complainant and on perusing the records, upon satisfied that there existed a prima facie case took the case on file in S.T.C.No.150 of 2023 for the offence under Section 138 of the NI Act. The Court sent the copies of complaint and records along with summons. After appearance of the accused, the accused was questioned about the offence alleged against him and he denied the commission of offence and pleaded not guilty.

6. During trial, the complainant examined himself as P.W.1 and exhibited 7 documents as Ex.P.1 to Ex.P.7.

7. After closure of the complainant's side evidence, the accused was examined under Section 313(1)(b) Cr.P.C. with regard to the incriminating aspects found against him and he denied the same as false. The accused has stated that the accused does not know the complainant, that the accused borrowed loan from one Ramkumar by issuing a cheque and that cheque was utilized and the above case was filed and that the signature found in Ex.P.1 (cheque) is that of his signature. The accused adduced neither oral nor documentary evidence.

8. The learned Judicial Magistrate, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, passed the impugned judgment dated 15.03.2024 holding that the complainant has not proved the offence under Section 138 of the NI Act as against the accused beyond reasonable doubt, acquitted him under Section 255(1) Cr.P.C. Aggrieved by the impugned judgment of acquittal, the complainant has filed the present appeal.

9. Whether the impugned judgment of acquittal passed in S.T.C.No. 150 of 2023 dated 15.03.2024 on the file of the Judicial Magistrate, Tiruchendur, is liable to be set aside? is the point for consideration.

10. Before entering into further discussion, it is necessary to refer Sections 118(a) and 139 of the Negotiable Instruments Act, which deal with statutory presumptions,  “Section 118 : Presumptions as to negotiable instruments, - Until the contrary is proved, the following presumptions shall be made:-

               (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;”

               “Section 139 : Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.”

11. It is the specific case of the complainant that the accused being a school time friend and belongs to same place, borrowed a loan of Rs.2,50,000/- for his urgent family expenses on 02.11.2022, for which, the accused gave a post-dated cheque dated 05.01.2023 for Rs.2,50,000/- drawn on Canara Bank, Attur Branch under Ex.P.1, that the complainant presented the cheque for collection through his banker Tamilnad Mercantile Bank, Attur Branch on 05.01.2023 but the same was returned dishonored for want of sufficient funds in the bank account of the accused through banker's memo dated 07.01.2023 under Ex.P.2, that the complainant sent a legal notice dated 13.01.2023 wrongly mentioning the accused name as Karthikeyan and hence, sent another legal notice dated 14.01.2023 to the accused under Ex.P.3 directing him to pay the amount covered by the cheque, that the accused's wife received both the notices on 16.01.2023 and 17.01.2023 under Ex.P.4 and Ex.P.5 respectively, that the accused sent a reply notice dated 01.02.2023 under Ex.P.7 with false and untenable allegations and that since the accused has not paid the amount within stipulated time, the complainant was forced to file the above complaint.

12. The defence of the accused, as evident from Ex.P.7 (reply notice), cross-examination evidence of P.W.1 and examination of the accused under Section 313(1)(b) Cr.P.C., is that the accused does not know the complainant and does not belong to the place of the complainant, that the accused is related to one Krishna Jeyanthi, W/o.Ramkumar, who was doing money lending business, that the accused borrowed a sum of Rs.8,500/- from the said Krishna Jeyanthi on 01.07.2021 and at that time, the said Krishna Jeyanthi received a cheque bearing No.140001 of Canara Bank, Attur Branch from the accused and the said Krishna Jeyanthi's husband Ramkumar had transferred a sum of Rs.8,500/- to the account of the accused, that the accused again borrowed a sum of Rs.84,500/- on 06.09.2021 from the said Krishna Jeyanthi and at that time, he gave two cheques of Equates Bank and Canara Bank, Attur Branch cheque bearing No.140005 and also subscribed signatures in promissory note forms and other papers, that the said Ramkumar had transferred Rs.84,500/- to the bank account of the accused, that the accused borrowed a sum of Rs.40,000/- on 02.10.2021 from the said Krishna Jeyanthi by issuing two cheques of Canara Bank, Attur Branch and the said Ramkumar had transferred amount to the bank account of the accused, that the accused had sent amount towards interest and principal from the bank accounts of his son and daughter to the account of the said Ram Kumar till 09.07.2022, that though the accused agreed to return the balance amount on monthly basis, that was not accepted by the said Krishna Jeyanthi and demanded the entire balance amount and since the accused could not pay the amount, the said Krishna Jeyanthi utilized the cheque issued to her and filled up the same in the name of her husband Ramkumar and also in the name of one Thangaesakki and filed the above case and the case in S.T.C.No.1427 of 2022 and that since the accused has neither borrowed any amount nor issued any cheque to the complainant, he is not liable for any claim.

13. As rightly contended by the learned counsel appearing for the complainant, it is evident from Ex.P.7 (reply notice), cross-examination evidence of P.W.1 and examination of the accused under Section 313(1)(b) Cr.P.C. that the accused has impliedly admitted Ex.P.1 (cheque) was belonging to him and also the signature found therein. But according to the accused, the cheque in dispute was given to one Ramkumar while borrowing a loan from him and the same was misused by the complainant.

14. It is pertinent to mention that the complainant as P.W.1 gave evidence reiterating the complaint contentions and deposed about the liability of the accused, issuance of cheque therefor, dishonor of cheque, issuance of statutory notice and the failure of the accused to pay the amount within the stipulated time. On considering the evidence of P.W.1 and also the admission of the accused with respect to Ex.P.1 (cheque) and the signature found therein, the learned Judicial Magistrate, taking note of the dictum laid down by the Hon'ble Supreme Court in Rangappa Vs. Sri Mohan reported in 2010 (11) SCC 441 and Basalingapa Vs. Mudibasappa reported in (2019) 5 SCC 418, has rightly drawn presumption in favour of the complainant under Sections 118 and 139 of the NI Act and the same cannot be faulted.

15. No doubt, the presumption available under Sections 118 and 139 of the NI Act are rebuttable in nature. It is settled law that the accused, in order to rebut the presumption drawn in favour of the complainant under Sections 118 and 139 of the NI Act, is not required to adduce any evidence and he can very well prove his probable defence through the evidence adduced by the complainant and that the standard of proof required is of preponderance of probabilities.

16. The only point to be decided is as to whether the accused during the cross-examination of P.W.1 has specifically shown a probable defence and thereby rebutted the presumption drawn under Sections 118 and 139 of the NI Act.

17. The main defence of the accused is that he does not know complainant, did not borrow money and did not issue any cheque to complainant.

18. As already pointed out, the accused had taken a defence in Ex.P.7 (reply notice) that the accused borrowed three loans from his relative Krishna Jeyanthi, W/o.Ramkumar, first one on 01.07.2021 for Rs.8,500/-, second one on 06.09.2021 for Rs.84,800/- and third one on 02.10.2021 for Rs.40,000/-. The accused has further stated that on three occasions though loan was obtained by him from the said Krishna Jeyanthi, her husband Ramkumar had transferred the loan amount from his bank account to the account of the accused. As rightly pointed out by the learned counsel appearing for the complainant, in the examination under Section 313(1)(b) Cr.P.C., the accused has stated that he obtained loan from Ramkumar and issued Ex.P.1 (cheque) to him and that he had issued six cheques to Ramkumar and using one cheque, the said Ramkumar filed a complaint alleging dishonor of cheque for Rs.10,00,000/-.

19. The learned counsel appearing for the accused would mainly contend that the complainant had miserably failed to prove that he had necessary financial capacity to lend the loan amount.

20. The learned counsel appearing for the complainant would rely on a decision of the Hon'ble Supreme Court in Tedhi Singh Vs. Narayan Dass Mahant reported in (2022) 6 SCC 735, wherein, the Hon'ble Apex Court has held that in the case under Section 138 of the NI Act, the complainant need not show that he had the capacity and the relevant passage is extracted hereunder;

               “9. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.”

21. In the case on hand, admittedly, in Ex.P.7 (reply notice), the accused has not specifically disputed the financial capacity of the complainant to advance loan amount. In the absence of any such plea, the complainant cannot be expected to prove his wherewithal at the beginning itself. But at the same time, during trial, the accused can very well demonstrate that the complainant did not have the financial capacity by adducing his evidence or through the evidence adduced by the complainant's side.

22. The learned counsel appearing for the accused would rely on a decision of the Hon'ble Supreme Court in Basalingapa Vs. Mudibasappa reported in (2019) 5 SCC 418 referred supra, wherein, the Hon'ble Apex Court has held that financial capacity of the complainant to lend money is a crucial factor in deciding whether a loan transaction actually took place and further when the financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity and the relevant passages are 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 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. .... 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. .....

               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 perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence.

               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.”

23. The learned counsel appearing for the accused would submit that during the cross-examination of P.W.1, the defence has elicited that the complainant had no necessary means to advance loan amount as the complainant himself admitted that he was working only as a coolie.

24. As rightly pointed out by the learned counsel appearing for the accused, the complainant, in his complaint, stated that he had Rs.2,50,000/- from a bank loan by pledging jewels and agricultural income and the relevant portion is extracted hereunder;



25. But in cross-examination, P.W.1 would say,





26. But admittedly, the complainant has not produced any material or evidence to show that he pledged the jewels with the bank and obtained loan amount. Though the complainant has stated that he gave necessary receipt to his advocate, he has not chosen to produce the same. As rightly pointed out by the learned counsel appearing for the accused, the complainant, in his evidence, would admit that he gave the loan amount to the accused through one Krishna Jeyanthi and that he used to borrow amounts from the said Krishna Jeyanthi whenever he needed and the relevant portion of the evidence is extracted hereunder;



27. P.W.1 would further say,





28. As rightly contended by the learned counsel appearing for the accused, when the evidence of complainant as P.W.1 is read in its entirety, it cannot be stated that the accused had wherewithal to advance any loan to the accused. Considering the admission of the complainant that he is a coolie, his wife does garden work, sold agricultural lands and did not produce materials on pledging jewels for bank loans or educational expenses of his children, it can easily be inferred that the accused has shown a probable defence that the complainant lacked financial capacity to advance any loan to the accused. In that fact situation, as rightly contended by the learned counsel appearing for the accused, the burden shifted to complainant to prove that he had necessary wherewithal but he did not provide evidence.

29. In the light of the above, this Court concludes that the accused has successfully rebutted the presumption drawn under Sections 118 and 139 of the NI Act in favour of the complainant and that therefore, the complainant failed to prove the offence under Section 138 of the NI Act and as such, the decision of the learned Magistrate cannot be found fault with. Consequently, this Court decides that the appeal is devoid of merits and is liable to be dismissed.

30. In the result, the Criminal Appeal is dismissed.