2021 (4) TMI 1287

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....he accused borrowed a sum of Rs. 2,30,000/- from the complainant to meet out the medical expenses of his parents and to help his father-in-law to complete the constructions work in the portion owned by his wife, that the accused in an attempt to discharge the said loan issued a cheque on 05.07.2012 drawn on Indian Overseas Bank, Periakulam Branch for Rs. 2,30,000/-, that when the said cheque was presented for collection, the same was returned as 'funds insufficient', that when the complainant visited the accused house and demanded the amount, the accused, his mother and his wife had treated the complainant badly and threatened that they would not pay any amount, that the complainant was forced to lodge a complaint before the District Superintendent of Police, Theni on 10.07.2012, that the police, after receiving the complaint has conducted an enquiry and settlement was arrived at, to the effect that the accused has to sell his property to the complainant and two other persons and executed a sale agreement therefor, that the accused has then received a sum of Rs. 5,000/- from the complainant and Rs. 5,000/- from one Saith Hussain and made an endorsement in the sale agreement....

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....lse and further stated that a false case was foisted against him. Though the accused has stated that he is having defence evidence, he has not let in any evidence subsequently. 7.The learned Judicial Magistrate, upon considering the evidence and on hearing the arguments of both the sides, has passed the judgment on 09.06.2016 convicting the accused for the offence under Section 138 of Negotiable Instruments Act and sentencing him to undergo one year simple imprisonment and to pay a compensation of Rs. 2,30,000/- within a period of two months from the date of receipt of a copy of the judgment under Section 357 (3) Cr.P.C, in default to undergo two months simple imprisonment. Aggrieved by the said judgment of conviction and sentence, the accused has preferred an appeal in Crl.A.No.46 of 2016 and the learned Additional District and Sessions Judge, Periakulam, on perusing the records and on hearing the arguments of both the sides, has passed the impugned judgment on 13.04.2017, 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 j....

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....nt of Police, Theni on 05.05.2014 under Ex.P.5, that the accused after coming to know about the complaint, has requested the complainant to present the cheque again and accordingly, the complainant has presented the cheque for collection on 15.05.2014, that the cheque was again returned dishonoured for want of sufficient funds in the bank account of the accused through bank memo dated 15.05.2014 under Ex.P.6, that thereafter, the complainant has issued a legal notice, dated 22.05.2014, to the accused demanding to pay the amount covered by the cheque under Ex.P.7 through RPAD vide receipt under Ex.P.8, that the accused has received the statutory notice on 23.05.2014 as evident from the receipt issued by the Indian Post under Ex.P.9 and that since the accused has neither sent any reply nor made any payment, the complainant was forced to prefer the complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. 11.The complainant as P.W.1, 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&....

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....s settled law that the accused in order to rebut the presumption drawn in favour of the complainant under Sections 118 and 139 of Negotiable Instruments Act, is not required to adduce any evidence and he can prove his probable defence through the evidence adduced by the complainant and that the standard of proof required is of preponderance of probability. 16.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. 17.In the revision grounds, a plea was raised that the accused has no bank account and the said cheque was not belonging to him, but the same was not raised before the trial Court. It is not the specific case of the accused that he has produced materials to prove the said 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 par....