- (1.) The Appellant/Complainant has preferred the instant Criminal Appeals before this Court as against the Judgment of Acquittal in C.C.Nos.5353 & 5354 of 2005, dated 20.05.2008 passed by the Learned XVIII Metropolitan Magistrate, Saidapet, Chennai. The Observations of the trial Court in the impugned Judgments:
(2.) The Learned XVIII Metropolitan Magistrate, Saidapet, Chennai, while passing the impugned Judgments in C.C.No.5353 & 5354 of 2005, on 20.05.2008, in paragraph 9 & 10, had observed as follows: "9.During the course of cross examination on 17.11.2006 PW1 has stated that -2003 XXX XXX XXX." Again in the cross examination conducted on 5.2.2007 he has stated that " XXX XXX XXX." 10.The above shows the contradictions on the part of the PW1 about the date and time of issuance of cheque. At the same time as alleged by the complainant side there were inconsistencies also in the versions of the accused about the issuance of cheque and liability thereon referred to above by the complainant side. In his evidence at the time of chief examination the DW1/accused has stated that, " XXX XXX XXX." The accused side has also taken a stand that the cheques were obtained under duress. This above also contrary to the above testimony of the accused. The judgment 2007 1 MWN(Cri) 77 cited by the complainant side deals about the case where for the loan obtained a promissory note was executed. The judgment 2007 2 MWN(Cri) 72 deals about the case where drawer instructed for the stop payment and not exactly applicable to the fact and circumstances of the case like the other judgments of cited by the complainant side. It is surprising that when the PW1 has advanced such huge amount as loan why he has not maintained any records for the same. Admittedly, there was no entry about the transactions pertaining to the loan in his Income Tax returns. Contrary to the claim of the complainant, the accused maintain his stand consistently that the cheques in question were not give for any legally enforceable liability and debt at the time of replying to the legal notices sent by the complainant and during the course of trial. The circumstances naratted and the dictum in the judgment of Hon'ble Supreme Court 2008 1 CTC 433 squarely applicable to the case of the accused. At the same time, in view of the above contradictions on the version of the complainant and accused sides, two views are possible. However, in view of the categorical denial of the accused side and their consistence attempt in rebutting the presumption by denying the existence of any legally enforceable liability and debt for issuance of cheque from notice stage to trial stage and standard of proof on the accused side as it has been laid down in the various judgments of higher Courts including the judgments P.Eswaran V. J.A.Abdul Hameed, 2006 5 CTC 296, 2008 1 SCC 258 and 2008 (1) CTC 453 referred to by the accused side, this Court tend to take decision in favour of the accused side. The Complainant taken a stand that the cheques were given as security later used as against the liability subsisting at that time. Some judgments of High Courts also cited in this regard. If it was the original position, why in the complaint he has stated specifically that the cheques were given for debt." and resultantly dismissed the Complaints and found the Respondent/ Accused not guilty under Section 138 of the Negotiable Instruments Act and acquitted him under Section 255 Cr.P.C., for the reason that the Appellant/Complainant failed to prove his case through evidence that the Cheque No.778866 dated 21.4.2005 for Rs.1,95,000/- (in C.C.No.5353/2005), Cheque Nos.778865, 778864 dated 21.12.2004, 21.2.2005 each for Rs.2,00,000/- (in C.C.No.5354/2005), was given against the legally enforceable liability or loan. The Appellant's Contentions (In Both Appeals):
(3.) According to the Learned Counsel for the Appellant/ Complainant, the trial Court had committed an error in acquitting the Accused, which is against Law and weight of Evidence and the Principles of Natural Justice.;