JUDGMENT (Prayer: This Criminal Revision case has been filed, under Sections 397 and 401 of Cr.PC, to set aside the conviction imposed in the judgement dated 07.04.2017 made in C.A.No.6 of 2016 on the file of the learned First Additional District and Sessions Court, Erode confirming the conviction imposed in the judgement dated 04.12.2015 made in STC.No.446 of 2013 on the file of the learned Judicial Magistrate, Fast Track Court No.2, Erode by allowing this Criminal Revision Petition.) The Revision challenges the judgment of the Learned I Additional District and Sessions Court, Erode dated 07.04.2017 passed in C.A.No.6 of 2016 confirming the judgment of conviction and sentence for the offence under Section 138 of the NI Act passed by the Learned Judicial Magistrate, Fast track Court II, Erode, in STC NO. 446 of 2013 dated 04.12.2015. 2. The case of the complainant/respondent is that the petitioner borrowed a sum of Rs. 21,00,000/-(Rupees Twenty one Lakhs only) for his urgent business on 24.10.2011 and towards discharge of the said debt issued a cheque for the said amount dated 24.01.2012. The respondent presented the cheque for collection in his bank viz., Union Bank of India, Erode branch on 02.02.2012 and the said cheque was dishonered on 3.02.2013 with an endorsement --Funds Insufficient--. The respondent sent registered statutory notice on 01.03.2012, the said notice was received by the accused on 02.03.2012. Since the petitioner did not make payment or replied to the notice, the respondent had filed a complaint under Section 138 of the Negotiable Instrument Act. 3. The respondent examined himself as P.W.1 and marked Exs.P.1 to P.9. The defendant examined one Kotteeswaran as D.W.1 and marked Exs.D.1 to D.3. The petitoner’s defence before the trial Court as could be seen from the evidence of the witnesses, was that this cheque was taken away by his lawyer one Kotteeswaran who was examined as D.W.1 and handed over the same to the respondent; that he did not owe the cheque amount to the respondent ; that the respondent sent an e-mail on 07.11.2011 stating that he had deposited certain amounts totalling a sum of Rs.15,50,000/-(Rupees Fifteen Lakhs and Fifty thousand only) with the petitioner, out of which he had received Rs.3,80,000/-(Rupees Three Lakhs and Eighty thousand only) and only the remaining amount need to be settled. The petitioner’s case, therefore, was that the version of the respondent that the petitioner took a loan on 24.10.2011 cannot be true. Further, his case was that the respondent had invested money for purchase of commodities between the period from 01.04.2010 to 03.09.2010 and the respondent incurred a loss of Rs.1,36,621/- (Rupees One Lakh Thirty six thousand six hundred and twenty one only) which was deducted from the account of the petitioner, by one M/S.Adroit Financial Commodity Service Pvt. Ltd., with whom the respondent invested money through the petitioner. D.W.1/Kotteeswaran who was his lawyer had also independently filed a complaint by misusing the cheque, which was not given for any debt or liability. 4. The learned trial Judge, found that Exs.D.1 and D.3 are electronic records and hence, they are inadmissible in the absence of Certificate under Section 65-B of the Indian Evidence Act. The trial Judge further found that the petitioner had not stated his defence case, when he was questioned under Section 313 of Cr.P.C. Thus, the learned trial Judge found that the petitioner had not rebutted the statutory presumption and hence, the complainant need not establish the liability; that the Court can presume the existence of liability as per Section 139 of NI Act. 5. The learned Appellate Judge confirmed the finding of the learned trial Judge and held that since the respondent has proved the foundational facts, the Court shall presume the existence of legally enforceable liability. The Appellate Court also found that the petitioner did not send any reply to the statutory notice and he had not stated anything before the Court, when he was examined under Section 313 of CR.P.C. The Learned Appellate Judge also found that the petitioner did not establish the fact that Mr. Kotteeswaran/D.W.1 had taken the blank cheque from his office, and misused the same and filed the complaint through the respondent herein. 6. Heard Mr.N.Manoharan, Learned Counsel appearing for the petitioner and Mr.Nalliappan, Learned Counsel appearing for the respondent. 7. Mr.N.Manoharan, learned counsel for the petitioner submitted that the cheque involved in the instant case was taken by the said Kotteeswaran from the office of the petitioner and had misused the same by filing a false complaint through the respondent herein. He also submitted that the said Kotteeswaran’s complaint also ended in conviction and confirmed by the Appellate Court. 7. Mr.N.Manoharan, learned counsel for the petitioner submitted that the cheque involved in the instant case was taken by the said Kotteeswaran from the office of the petitioner and had misused the same by filing a false complaint through the respondent herein. He also submitted that the said Kotteeswaran’s complaint also ended in conviction and confirmed by the Appellate Court. The revision challenging the conviction has been filed in Cr.R.C.No.610 of 2017, before this Court. The learned counsel submitted that the petitioner had let in evidence to rebut the statutory presumption and in any event, the petitioner has raised serious doubts in the version of the respondent and hence, both the Courts below ignored the settled principles of law, with regard to the nature and standard of proof that is required for an accused to rebut the statutory presumption. The learned counsel submitted that the petitioner could not reply to the statutory notice as he was away due to the advice of his lawyer viz., Kotteeswaran and for some period was also in judicial custody; that the respondent being aware of his situation presented the cheque and issued the statutory notice. The learned counsel submitted that P.W.1, the respondent had admitted in the cross examination that he had sent a mail on 07.11.2011, wherein he had specifically stated that he had invested only Rs.15,50,000/-(Fifteen Lakhs and Fifty Thousand only) in the petitioner’s concern. He further pointed out that in the said e-mail, the respondent also had stated that out of the invested amount, he had received a sum of Rs.3,80,000/-(Rupees Three Lakhs and Eighty thousand only) and only the remaining need to be settled, and that the deposits were made in the months of January to April 2010. The learned counsel submitted that the letter dated 07.11.2011, which was sent two weeks after the alleged loan said to have been taken by the petitioner from the respondent. If the version of the respondent was true, the said loan amount would have been obviously been referred to in the said e-mail. That apart, he further submitted that a huge amount of Rs.21,00,000/- (Rupees Twenty one lakhs only) is alleged to have been given by cash which is again highly improbable. If the version of the respondent was true, the said loan amount would have been obviously been referred to in the said e-mail. That apart, he further submitted that a huge amount of Rs.21,00,000/- (Rupees Twenty one lakhs only) is alleged to have been given by cash which is again highly improbable. The learned counsel further submitted that Ex.D.3 is a mail sent to Kotteeswaran, in which he had attached a document which contains the details of cheques which is meant for various clients of the petitioner. The cheque in question in the instant case, according to him was meant to be the cheque to be issued to one Sivanesan and it was a blank cheque. The details were furnished by the petitioner to the said Kotteeswaran to take care of his accounts till the petitioner sorted out his issues with the clients who had filed complaints against him. The Learned Counsel thus submitted that the petitioner had rebutted the statutory presumption and relied upon the following judgments; in support of his submission. a) Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal – (1999) 3 SCC 35 b) Kumar Exports v. Sharma Carpets – (2009) 2 SCC 513 c) Rangappa v. Sri Mohan – (2010) 11 SCC 441 8. The Learned Counsel for the respondent submitted that both the Courts below had correctly appreciated the facts and had come to the conclusion that the petitioner had failed to rebut the statutory presumption; that the petitioner was taking inconsistent stand in as much as he would admit that the cheque was handed over to the respondent and at the same time, alleged that blank cheques and blank papers were misused by the respondent. The Learned Counsel would also further submit that the petitioner was unnecessarily clubbing the money transactions in the share business which has nothing to do with the loan taken by the petitioner from the respondent. He relied upon the following judgments of the Hon’ble Apex Court: a) C. Keshavamurthy v. H.K., Abdul Zabbar 2013 (2) MWN (Cr.) DCC 162 (SC) b) Tedhi Singh v. narayan Dass Mahant 2022 (1) MWN (Cr.) DCC 139 (SC) c) Uttam Ram v. Devinder Singh Hudan CDJ 2019 SC 1201 The Learned Counsel would submit that, in any event, the scope of Revision is limited and this Court can interfere in concurrent findings only if the findings are perverse. 9. 9. Before adverting to the rival submissions, we may state that we are conscious of the fact that while exercising Revisional Jurisdiction involving concurrent finding of the Courts below, this Court cannot act as a second Appellate Court. It is trite law that in a Revision challenging Appellate Court’s judgment, confirming the judgment of trial Court, the Court can appreciate the evidence only to the limited extent of ascertaining if the finding is perverse, unreasonable or implausible. 10. The point for consideration is whether the petitioner’s defence is probable and whether it creates a doubt about the existence a legally enforceable debt or liability. It is the case of the complainant, that he had lent a sum of Rs.21,00,000/-(Rupees Twenty one lakhs only) on 24.10.2011 by cash to the petitioner for his urgent business. The evidence discloses that the respondent was a client of the petitioner and he had invested in commodity trading through the petitioner’s firm M/S.Shri Balaji Wealth Management. The respondent would also admit that he is known to Kotteeswaran and in the instant case, Kotteeswaran and his Senior Balasubramanian were his lawyers. The evidence of D.W.2 confirms the fact that the respondent had invested in M/S. Adroit Financial Commodity Service Pvt. Ltd, in commodity trading and suffered loss of Rs.1,36,621/-(One lakh, thirty six thousand, six hundred and twenty one only) and this amount was deducted from the account of the petitioner, since the petitioner was the franchisee of the said company as the investment was made by the respondent through the petitioner. D.W.2 is an employee of M/S. Adroit Financial Commodity Service Pvt. Ltd. 11. The learned counsel for the respondent submitted that Ex.D.3 and the attachment which is sent along with Ex.D.3 cannot be accepted as the said document was not certified as required under Section 65-B of the Indian Evidence Act. That apart the learned counsel submitted that in any case, there is no means to verify the authenticity of the attachment to the said e-mail. We find force in the said submission of the learned counsel for the respondent, and hence, we hold that Ex.D.3 cannot be looked into as it is inadmissible. 12. However, we find that the Ex.D.1 has been admitted by the respondent himself and he has also specifically admitted to the contents of the said e-mail. We find force in the said submission of the learned counsel for the respondent, and hence, we hold that Ex.D.3 cannot be looked into as it is inadmissible. 12. However, we find that the Ex.D.1 has been admitted by the respondent himself and he has also specifically admitted to the contents of the said e-mail. The said e-mail is dated 07.11.2011, in which there is no whisper about the alleged loan said to have been given to the petitioner by way of cash. According to the respondent, this loan was given on 24.10.2011. On the other hand, the respondent reiterates that out of Rs.15,50,000/-((Fifteen lakhs and fifty thousand only) invested by him. He had received Rs.3.80,000/- (Rupees Three Lakhs and Eighty thousand only) and only remaining need to be settled. That apart, we find that it is higly improbable that such a huge amount of Rs.21,00,000/- (Rupees Twenty one lakhs only) has been given as loan in --cash-- to the petitioner especially when even according to the respondent there were, a number of complaints pending against the petitioner at the relevant point of time. In our view, the petitioner has raised the probable defence and has created a doubt about the existence of liability. Both the Courts below, in our view, have ignored the evidence elicited in the cross examination of P.W.1 and the contents of Ex.D.1 which is admitted by P.W.1. In view of the fact that probable defence had been raised the burden shifts to the complainant to establish the liability. However, the complainant did not choose to establish the liability. In fact, on a specific question put to him in the cross examination as to whether he had taken any further document from the petitioner confirming his liability, the respondent would say that the petitioner had admitted his liability in a paper and that he was prepared to produce the same. The respondent had not produced the same which also throws a doubt in his version. 13. In Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 the Hon’ble Supreme Court was pleased to hold as follows: --... 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. 13. In Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 the Hon’ble Supreme Court was pleased to hold as follows: --... 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities-. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. ...-- Further the Hon’ble Supreme Court in Kumar Exports v. Sharma Carpets reported in (2009) 2 SCC 513 was pleased to observe as follows: --20......... 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. 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 judgments relied upon by the respondents also reiterate the same principle except that the Hon’ble Apex Court in those judgements found on facts that the accused therein did not rebut the statutory presumption. 14. Applying the above said principles to the facts of the instant case, we find that the petitioner had rebutted the statutory presumption and raised a probable defence which creates doubt about the existence of legal liability. In such circumstances, the burden shifts to the complainant to establish the existence of legally enforceable debt or liability. The respondent has not done so in our view. The Courts below, in our view, have not appreciated the evidence in the light of the aforesaid principles of law. Vital admissions of the respondent and evidences have not been considered by the courts below while deciding the issues. This, in our view, calls for interference by this Court in exercise of its Revisional powers as the Courts below have ignored material evidence and have not appreciated the law relating to presumption under section 139 NI Act and its rebuttal in the proper perspective. 15. For the foregoing reasons the judgments of the Learned Principal Sessions Judge is set aside and the accused is set at liberty. In the result, this Criminal Revision Case stands allowed. Consequently, connected miscellaneous petition is closed.