ORDER : This Criminal Revision Case has been filed against the order passed by the V Additional District and Sessions Judge, Coimbatore dated 08.09.2016, in Crl. Appeal No. 52 of 2016 by which, the judgement and conviction made by the learned Judicial Magistrate, Fast Track Court at Magisterial Level-II, Coimbatore made in C.C.No.9 of 2012 dated 22.03.2016 has been confirmed. 2. The facts of the case are as follows : The complainant/respondent hereinafter referred to as, 'the complainant' is a firm called M/s. Sree Ranganathar Spinners represented by its Power Holder one Mr.D.Pradeep and the appellant/accused is one Mr.G.Udyakumar, are known to each other. Therefore, in that strength, according to the complainant, the accused approached the complainant to borrow a sum of Rs.3 lakhs, accordingly, on 25.07.2011 a loan of Rs.3 Lakhs was paid by the complainant to the accused and on the said date, the accused executed a mortgage deed. According to the terms of the mortgage deed, in lieu of the payment of Rs.3 Lakhs loan paid to the accused by the complainant, the accused has to pay monthly interest periodically at the rate of 18% per annum i.e., 1.50%per month and shall repay the loan amount of Rs.3 Lakhs to the complainant, within the maximum period of three years. It was the further condition in the mortgage deed that, if any default in payment of the interest, it is open to the complainant to make the demand of the entire amount from the accused. 3. Accordingly, since the accused did not pay the interest, as agreed upon, periodically, the complainant demanded to repay the entire amount of Rs.3 Lakhs with interest and in order to repay the said amount of Rs.3 Lakhs, the accused issued a cheque bearing No. 019511, dated 09.01.2012, for Rs.3 Lakhs drawn on HDFC Bank Ltd., Gandhipuram Branch, Coimbatore in the capacity as a sole proprietor of M/s. Geekay Tex Associates and had instructed the complainant to present the cheque. 4. Accordingly, the complainant presented the cheque on 09.01.2012 at his bank namely, the Lakshmi Vilas Bank, Ramanathapuram Branch, Coimbatore from whom, the complainant received a return memo on 10.01.2012, stating that the accused bank has returned the cheque as ‘Funds Insufficient’. Subsequently, the complainant had issued a statutory notice under Section 138(b) of the Negotiable Instruments Act hereinafter referred to as, ‘N.I. Act’ on 04.02.2012. Subsequently, the complainant had issued a statutory notice under Section 138(b) of the Negotiable Instruments Act hereinafter referred to as, ‘N.I. Act’ on 04.02.2012. Though the said statutory notice was received by the accused on 11.02.2012, he did not issue any reply nor has come forward to repay the said amount of Rs.3 Lakhs covered under the said cheque. Therefore, the complainant preferred a complaint on 23.03.2012 before the Trial Court for the alleged offence punishable under Section 138 of the N.I. Act. The said complaint was taken on file in C.C. No. 9 of 2012, before the Trial Court. 5. Before the Trial Court, on the side of the complainant P.W.1 and P.W.2 were examined and Exs.P1 to P9 were marked. On the side of the accused, D.W.1 was examined, Document D1 alone was marked. After completion of trial, taking into account the strength of the evidence advanced by both sides, the Trial Court by judgement dated 22.03.2016 had come to a conclusion that the accused had been guilty of the offence punishable under Section 138 of the N.I. Act and accordingly, the Trial Court convicted the accused for a simple imprisonment for 10 months and also imposed a fine of Rs.5,000/- in default he shall undergo 2 months imprisonment. 6. As against the said judgement and the conviction dated 22.03.2016 made by the Trial Court, the accused preferred appeal in Crl.Appl.No.52 of 2016 and the same was heard and decided by the V Additional District and Sessions Judge, Coimbatore, vide judgement dated 08.09.2016 wherein, the First Appellate Court also, after having taken into account every plea raised by the accused in the said appeal, has ultimately, come to a conclusion that the judgement and conviction made by the Trial Court was justifiable and sustainable in law and therefore, confirmed the said judgement and conviction made by the Trial Court and thereby, the conviction made against the accused has been confirmed by the First Appellate Court as against which, the present revision case has been filed by the accused. 7. In so far as the lending of loan of Rs.3 Lakhs by the complainant to the accused, it has been admitted by the accused, as by admitting the same, the accused had executed a mortgage deed which was also marked as Ex.P3. 7. In so far as the lending of loan of Rs.3 Lakhs by the complainant to the accused, it has been admitted by the accused, as by admitting the same, the accused had executed a mortgage deed which was also marked as Ex.P3. It was also admitted by the accused his signature found in Ex.P4, i.e., cheque in question dated 09.01.2012, bearing No.019511. The only defence taken by the accused side before the Trial Court was that, in order to repay the said loan amount of Rs.3 Lakhs, the accused had issued the cheques on 02.12.2011 and on 09.01.2012 for a sum of Rs.1 lakh and for a sum of Rs.2 Lakhs in cheque No.155101 and 155109 respectively, and the said amount had been credited in the account of D.P. Textiles, which is a business concern of the Power of Attorney Holder one D.Pradeep, who is none other than the son of the partner of the complainant s firm, namely, Sree Ranganathar Spinners as the said Power of Attorney Holder D.Pradeep's father alone is the owner of the said complainant's company Sree Ranganathar Spinners. The said Pradeep, the Power of Attorney holder in this case, who is running the said D.P. Textile, instead of crediting the said amount of Rs.3 Lakhs paid by way of cheques by the accused at the complainant s firm, had wrongly or clandestinely credited to the account of the firm D.P. Textiles and therefore, for the amount of Rs.3 Lakhs received by the accused the amount of Rs.3 lakhs was repaid and therefore, there was no legally enforceable debt between the complainant and the accused. 8. It was the further defence taken by the accused before the Trial Court that, at the time of taking the loan of Rs.3 Lakhs from the complainant, the accused was forced to give unsigned green sheets as well as stamp papers and also unfilled cheque singed by the accused and the said documents had been misused by the complainant including the cheque in question, as the cheque was never executed by the accused. 9. In order to ascertain the said defence taken by the accused side, though the Trial Court as well as the Appellate Court had taken into account the evidence adduced by both sides, this Court wants to highlight the relevant evidence made before the Trial Court. 10. 9. In order to ascertain the said defence taken by the accused side, though the Trial Court as well as the Appellate Court had taken into account the evidence adduced by both sides, this Court wants to highlight the relevant evidence made before the Trial Court. 10. Accordingly, the evidence of P.W.1, i.e., Power of Attorney Holder, who himself was examined as P.W.1 before the Trial Court is taken up first. In his examination, he has stated as follows: xxxxxx 11. Like that, the Bank Manager of the complainant’s bank has also been examined as P.W.2, who deposed before the Trial Court in his examination in chief in the following terms: xxxxxx 12. Like that, the Bank Manager of the accused bank has been examined as D.W.1, who deposed before the Trial Court as follows: xxxxxx 13. The said mortgage deed though was not registered, has been marked as Ex.P3 and the relevant portion of the said mortgage deed are extracted hereunder: xxxxxxx 14. With the strength of these evidences both documentary as well as oral, the Trial Court has come to the conclusion that the accused was found guilty and accordingly, the Trial Court has convicted the accused for the above said sentence. 15. The Trial Court, analysed the defence taken by the accused that, the entire loan amount of Rs.3 Lakhs was repaid by way of two instalments through cheques i.e., by cheque dated 02.12.2011 a sum of Rs.1 Lakh and another cheque dated 09.01.2012 a sum of Rs.2 Lakhs was paid, however, the same was credited only in D.P. Textiles, therefore, the entire sum since has been repaid by the accused, according to the accused, there was no legally enforceable debt. Therefore, the cheque in question, which has been dishonoured has not been given for any legally enforceable debt and therefore, the accused cannot be considered to be guilty of the offence punishable under Section 138 of the N.I. Act. When analysing this issue, the Trial Court has given its finding which reads thus: “The defence side contended that the accused borrowed Rs.3 Lakhs and repaid the same. During the cross examination of P.W.1, it was suggested that Rs.1 Lakh was paid by cheque on 02.12.2011 and Rs.2 Lakhs was paid by cheque on 09.01.2012. Now it is pertinent to note the evidence of P.W.2, the Manager of Lakshmi Vilas Bank. During the cross examination of P.W.1, it was suggested that Rs.1 Lakh was paid by cheque on 02.12.2011 and Rs.2 Lakhs was paid by cheque on 09.01.2012. Now it is pertinent to note the evidence of P.W.2, the Manager of Lakshmi Vilas Bank. The statement of accounts of D.P. Textiles was marked as Ex.P9. The said concern by name D.P. Textiles was owned by the Power of Attorney holder Mr. Pradeep. As per Ex.P9, a sum of Rs.3 Lakhs was paid to the accused on 28.06.2013. The said amount was repaid by way of cheque No.155101, for Rs.1 lakh dated 02.12.2011 and another cheque No.003411 dated 09.01.2012 for Rs.2 Lakhs. From the evidence of P.W.2, it is crystal clear that the amount said to have been paid by the accused on 09.01.2012 and 02.12.2011 relates to repayment to D.P. Textiles and not in favour of Sree Ranganathar Spinners which is the complainant herein. The contention of the accused that he repaid 3 lakhs relates only to D.P. Textiles go to show that the accused had attempted to prove a false payment. The accused had executed a mortgage deed (Ex.P2) and borrowed the amount. Two persons by name Ponnuswamy and Arumugam had witnessed the said document. If the said document is false, the accused has every option to summon the two witnesses to establish the same. But the accused has not taken any steps. The accused had categorically admitted the amount borrowed. But failed to establish the repayment alleged. The presumption was drawn in favour of the complainant as aforementioned that the cheque was issued only towards discharge of a legally enforceable debt or liability. The defence side has a burden to rebut the same. The defence side has not rebutted the same by preponderance or probability which is the standard of proof for the accused. In fine, it is concluded that the accused is guilty for the offence under Section 138 N.I. Act.” 16. The defence side has a burden to rebut the same. The defence side has not rebutted the same by preponderance or probability which is the standard of proof for the accused. In fine, it is concluded that the accused is guilty for the offence under Section 138 N.I. Act.” 16. The learned counsel for the accused would submit that both the loan paid to the accused as well as the repayment of the said loan had been transacted by way of negotiable instruments, as the loan was paid to the accused for a sum of Rs.3 Lakhs by way of cheque for which, he executed a mortgage deed which was marked as Ex.P3 and in order to repay the said loan, by way of two instruments the entire loan of Rs.3 Lakhs had been paid i.e., the one by way of cheque dated 02.12.2011 for an amount of Rs.1 Lakh and the cheque dated 09.01.2012 of Rs.2 Lakhs. Therefore, the learned counsel for the accused would submit that in the absence of any legally enforceable debt, the proceedings under Section 138 of the N.I. Act could not have been proceeded against the petitioner/accused. 17. The learned counsel for the petitioner/accused would further submit that, since the complainant's firm run by the father and the D.P. Textile is run by the son, who stood as a Power Holder to present the complaint and conducted the trial before the Trial Court against the accused, both the father and the son had been in hand and glove and inspite of the loan amount having been wiped off by the accused, very cleverly, this complainant, though received back the said repayment, had credited not in the account of the complainant's firm but only had credited in the concern of the Power holder i.e., said D.Pradeep in the name of D.P. Textiles and therefore, there had been no legally enforceable debt against the accused. 18. 18. It was the further defence taken by the learned counsel for the petitioner/accused that, in paragraph-13 of the judgement of the Trial Court as extracted above, the learned Judge had erroneously held that as per Ex.P9 a sum of Rs.3 lakhs was paid to the accused on 28.06.2013 and the said amount was repaid by way of cheque No.155101, for Rs.1Lakh dated 02.12.2011 and another cheque No.003411 dated 09.01.2012, for Rs.2 Lakhs and from the evidence of P.W.2, it is crystal clear that the amounts said to have been paid by the accused on 09.01.2012 and 02.12.2012 reveal the repayment of D.P. Textile and not in favour of Sree Ranganather Spinners, who is the complainant herein. 19. Though this defence had been taken before this Court, the very same defence had been taken by the accused side before the First Appellate Court also, and on perusal of the judgement of the First Appellate Court, this Court finds that the learned First Appellate Court Judge has given his anxious consideration to each of the defence taken by the accused side. 20. In this regard, the judgement made in the appeal it has been observed as follows: “16. As probable defence, the appellant had raised that the sid sum of Rs.3,00,000/- had been repaid by the appellant by way of two cheques bearing Nos.155101, dated 02.12.2011 for a sum of Rs.1,00,000/- and the other bearing No.155109, dated 09.01.2012 for the remaining sum of Rs.2,00,000/- and as such, there is no legally enforceable debt against the appellant. 17..... 18... 19. At this jucture, as pointed out by the learned counsel for the respondent, it would be relevant to refer to the evidence of P.W.2 and the Ex.P-9. The P.W.2 is the Branch Manager of M/s. Lakshmi Vilas Bank Ltd., Ramanathapuram Branch, where the respondent and the said M/s. D.P. Textiles maintain their Current Account and in which the said cheques were presented for collection. On perusal of the evidence of P.W.-2, it is seen that he had deposed to the effect that as per the statement of accounts of M/s. D.P. Textiles, a sum of Rs.1,00,000/- had been credited to the account vide cheque No.155101 on 02.12.2011 and another sum of Rs.2,00,000/- had been credited to the account vide cheque No. 155101 on 02.12.2011 and another sum of Rs.2,00,000/- had been credited to the account vide cheque No. 155109. Thus, it is pellucid that the said two cheques referred by the appellant had been duly credited to the account of the said M/s. D.P. Textiles. As mentioned above, the contention of the appellant is that there is no due to the said M/s. D.P. Textiles while the said two cheques were credited and as such the said payment were only in respect of the amount payable to the respondent. As such, there seems to be some force in the contention of the appellant at this stage. But, at the same time, the learned counsel for the respondent contended that the said payments were made for the earlier borrowal with the said M/s. D.P. Textiles and not for the amounts due to the respondent. The learned counsel for the respondent pointed out that on 30.12.2010 a sum of Rs.3,00,000/- had been credited to the appellant vide cheque No.003411 from the account of the said M/s. D.P. Textiles and that the same had been later repaid as mentioned by the appellant. In fact, the P.W.-2 had deposed to the effect that a sum of Rs.3,00,000/- had been credited to the account of Mr. Udaya Kumar on 30.12.2010, vide Cheque No.003411. On perusal of the Ex.P-9 statement of accounts also it reveals the said payment. Though the P.W.-2 had been cross examined by the appellant, nothing had been elicited in his favour. It is also pertinent to note that it had not been denied either generally or specifically that the said payment of Rs.3,00,000/- credited to the account of Mr. Udaya Kumar, is not the appellant. Further, though the appellant had taken steps to examine the Branch Manager of M/s. HDFC Bank, Gandhipuram as D.W.-1 and through him the Ex.D-1 had been marked, it is evident that the appellant produced the statement of accounts only from 01.06.2011 to 30.01.2012. As such, the contention of the appellant that the said payment were only to the amount due to the respondent does not hold water. Per contra, there is force in the contention of the respondent.” 21. As such, the contention of the appellant that the said payment were only to the amount due to the respondent does not hold water. Per contra, there is force in the contention of the respondent.” 21. The subsequent defence was taken by the accused side, that the Trial Court Judge had come to the wrong conclusion that the payment of Rs.3 lakhs which was (clandestinely) credited in the account of the D.P. Textile is only against the repayment of the loan advanced by the D.P. Textile or the amount payable to the D.P. Textile by the accused, as Rs.3 Lakhs was paid to the accused on 28.06.2013 by way of two cheques i.e., on 09.01.2012 and on 02.12.2011. Even on prima facie reading of these findings given by the Trial Court Judge at paragraph 13 of the judgement, which has been extracted above it is found that it is certainly an erroneous findings. However, this error has been noticed by the Appellate Court Judge and he has given his reasons at paragraph-20 of his judgement, which reads thus : 20. Further, the learned counsel for the appellant contended that the trial court had erred in holding that as per Ex.P-9, a sum of Rs.3,00,000/- was paid to the appellant on 28.06.2013 and that only the said amount had been repaid by the appellant on 02.12.2011 and 09.01.2012 and as such there could be no repayment even before the borrowal. But, as pointed above, the said sum of Rs.3,00,000/- had been credited only on 30.12.2010 and the cheque bearing 019505 dated 28.06.2011 (wrongly mentioned as 28.06.2013) for the sum of Rs.3,00,000/- had only been returned as evident from Ex.P-9. As such, this court is of the view that the same would also in no way help the case of the appellant, to rebut the presumption that is in favour of the respondent” 22. Therefore, it became clear that the accused had business transactions or money transactions with both the complainant firm as well as the D.P. Textiles, which is a firm or proprietor concern run by the said Pradeep, who is a power holder of the complainant in the case. Whether the accused had repaid the said amount of Rs.3 Lakhs received from the complainant's firm on 25.07.2011, as the receipt of the loan has been admitted, is the only question to be decided. 23. Whether the accused had repaid the said amount of Rs.3 Lakhs received from the complainant's firm on 25.07.2011, as the receipt of the loan has been admitted, is the only question to be decided. 23. In this context, the only worthy defence taken by the accused side is that, the said loan of Rs.3 Lakhs had been repaid by way of two cheques to the complainant on 02.12.2011 and on 09.01.2012. However, the fact remains that on 28.06.2011 itself, a cheque bearing No.019505 was given by the accused to the said D.P. Textiles and the same was presented and dishonoured. The date 28.06.2011 has been wrongly mentioned as 28.06.2013. Therefore, if the cheque dated 28.06.2011 was dishonoured, the accused had issued the cheque on 02.12.2011 and on 09.01.2012 in the name of D.P. Textile and the said cheques have been honoured and the amount of Rs.3 Lakhs had been credited in the account of D.P. Textiles. 24. Therefore, there had been no connection of the present transaction with the said transaction between the D.P. Textile and the accused. For the present transaction namely, the loan borrowed by the accused for a sum of Rs.3 Lakhs on 25.07.2011, if at all the accused wants to bring a rebuttal to the statutory presumption in the matter of offence under Section 138 of the N.I. Act, he may bring such rebuttal in an acceptable manner. Here, except the claim of repayment of the loan by way of two cheques dated 02.12.2011 and 09.01.2012, no other defence has been taken by the accused. Since the said payment of loan for a sum of Rs.3 Lakhs on two dates as mentioned above had been made only in lieu of the loan taken by him from the D.P. Textiles or due payable to the D.P. Textiles for which, he has already given a cheque on 28.06.2011 which was bounced, the said defence taken by the accused side to state that, he had repaid the said loan in entirety to the complainant firm, cannot be taken as a rebuttal even to the extent of Preponderance of Probability. 25. 25. Since the receipt of the amount of Rs.3 Lakhs, on 25.07.2011 from the complainant's firm has been admitted candidly by the accused and, though unregistered, a mortgage deed also has been executed and along with the mortgage deed, the property documents of the accused also had been handed over to the complainant, there need not be any other proof for the receipt of the amount of Rs.3 Lakhs from the complainant firm. When that being so, the said receipt of Rs.3 lakhs certainly, be the legally enforceable debt against the accused. Since the said legally enforceable debt has not been repaid and for the said repayment, a cheque had been issued by the accused on 09.01.2012 and the said cheque had been returned for 'Insufficiency of Funds' we can come to a prudent conclusion that the said cheque i.e., Ex.P4, dated 09.01.2012 was given by the accused only in repayment of the loan given to the complainant. 26. Moreover, when the complainant given statutory notice on 04.02.2011 demanding the repayment of Rs.3 Lakhs i.e., cheque amount from the accused, the accused, on receipt of the statutory notice had not responded by giving a reply. Therefore, the defence whatever now taken is only an after thought and even that defence now taken cannot be accepted as a rebuttal to erase the initial statutory presumption found in favour of the complainant in the matter of presumption under Section 138 of the N.I. Act r/w Section 139 & 118. 27. Therefore, this Court finds that absolutely there is no error in the Judgement of the First Appellate Court which is sought to be revised herein. The simple error committed by the Trial Judge in noting the dates has also been taken care of and properly explained by the First Appellate Court in its judgement especially at paragraph 20 of the judgement as referred to above. Hence, absolutely there is no infirmity in the judgement of both courts and therefore, the conclusion arrived at by the Trial Court for convicting the accused as has been confirmed by the First Appellate Court does not warrant any interference from this Court. 28. In the result, this Criminal Revision Case fails and the judgement of the Trial Court as well as the First Appellate Court which is under challenge in this Criminal Revision case are confirmed and hence, this Criminal Revision Case is dismissed. 28. In the result, this Criminal Revision Case fails and the judgement of the Trial Court as well as the First Appellate Court which is under challenge in this Criminal Revision case are confirmed and hence, this Criminal Revision Case is dismissed. The Trial Court is directed to take necessary steps to execute the conviction made against the revision petitioner/accused herein forthwith.