D KATHIRAVAN Vs. R VANMATHI

JUDGEMENT

(1.) The petitioner is the complainant in STC No. 1317 of 2010 on the file of the Judicial Magistrate No. IV, Salem. The petitioner filed the complaint in STC No. 1317 of 2010 against the respondent under Section 138 and 142 of the Negotiable Instruments Act and the complaint was dismissed and the respondent was acquitted of the charge by judgment of the learned Judicial Magistrate No. IV, Salem, dated 3.4.2014. Aggrieved over the same, the petitioner filed this petition seeking to grant leave of this Court to file Appeal against the said judgment.

(2.) It is submitted by the learned counsel for the petitioner that the respondent/accused issued a cheque for a sum of Rs.5,00,000/- in favour of the petitioner and thereafter, did not pay the amount and when the cheque was presented, the same was returned with an endorsement "funds insufficient". Therefore, after issuing statutory notice, the complaint was filed and the complainant examined PW.1, his power agent, to prove the entire transaction and no material evidence was collected from the evidence of PW.1 in favour of the respondent and the respondent has admitted the issuance of cheque and he came forward with a different story but failed to prove the same. Therefore, having regard to the admission of the respondent that the cheque was issued by him and failed to prove the circumstances under which the cheque was issued, the Court ought to have drawn adverse inference against the respondent and ought to have convicted the respondent under Section 138 of the Negotiable Instruments Act and the trial Court erred in taking into consideration the extraneous circumstances and acquitting the respondent. He also submitted that though the petitioner examined his power agent as PW.1, PW.1 is none other than the son of the petitioner and according to the petitioner, he was present during the transaction and therefore, his evidence should not have been rejected on the ground that he was only a power agent and the trial Court committed a serious error in rejecting the evidence of PW.1 on the ground that he was only a power agent and he was not aware of the transaction and also relied upon the judgment of the Hon'ble Supreme Court in the matter of Man Kaur (dead) by his LRs Versus Hartar Singh Sangha, 2010 10 SCC 512in support of his contention.

(3.) In this petition, we will have to see whether the leave sought for by the petitioner is to be granted?