- (1.) THIS appeal is preferred by the complainant challenging the Judgment of acquittal passed by the Judicial Magistrate, Avinashi, in C.C.No.134 of 1996 dated 22.11.2002 acquitting the accused for the offence under Section 138 of Negotiable Instruments Act (for short "The Act").
(2.) THE case of the complainant is that on 10.04.1996, the accused borrowed Rs.2,50,000/- from him with a promise to return the same within a period of two months. THEreafter, the complainant made several reminders to the accused to repay the amount and ultimately on 10.05.1996, the accused issued a cheque, Ex.P.1, dated 10.05.1996 for a sum of Rs.2,50,000/- drawn on State Bank of India, Avinashi Branch, in favour of the complainant. THE complainant further stated that on 23.08.1996, he has deposited the cheque, Ex.P.1, dated 10.05.1996 before the State Bank of India, Avinashi. THEreafter, the cheque was dishonoured on the ground of "Insufficient Funds". Ex.P.2 is the Banker's Memo. Ex.P.3 is the State Bank of India, Bank Chalan, dated 23.08.1996. THEreafter, the complainant sent a registered legal notice, Ex.P.4, dated 26.08.1996 calling upon the accused to pay the amount towards the dishonoured cheque. THE accused gave a reply, Ex.P.5, dated 07.09.1996, denying the averments contained in the legal notice sent by the complainant. THE complainant sent a rejoinder notice under Ex.P.6 dated 17.09.1996. But in spite of receiving the notice and even after 15 days from the receipt of the notice, the accused failed to pay the amount towards the dishonoured cheque, Ex.P.1 and therefore the complainant stated that the accused has committed the offence punishable under Section 138 of the Act. The complainant, in order to prove his case, examined himself as P.W.1 and examined P.W.2, the Accountant of the State Bank of India and the complainant marked Exs.P.1 to P.9. When the accused was questioned under Section 313 Cr.P.C., he denied his complicity in the offence and he has not chosen to examine any witness on his side and he has marked Ex.D.1, the reply notice sent by him to the complainant dated 12.10.1996. The learned Magistrate on consideration of the entire evidence available on record through the evidence of P.Ws.1 and 2 as well as the Exs.P.1 to P.9 and Ex.D.1 has come to the conclusion that the complainant has not proved his case for establishing the ingredients of the offence under Section 138 of the Act, by adducing acceptable evidence and acquitted the accused on the following grounds: i. The complainant has not stated in his legal notice, Ex.P.4 for what purpose the amount was given by him to the accused as a loan and it is also not mentioned on what date the amount was paid. ii. There is no explanation for presenting the cheque, Ex.P.1, dated 10.05.1996 only on 23.08.1996 and therefore the defence version that the accused gave two blank cheques while he joined in the chit funds organised by the complainant as security for taking the chit amount and the complainant has filled up one of the cheques and misused the same by foisting a case against the accused. iii. The present version of the complainant that he has presented the cheque, Ex.P.1 dated 10.05.1996 on 23.08.1996 at the instruction of the accused, is not stated either in his notice, Ex.P.4 or in his complaint. iv. A perusal of the cheque, Ex.P.1, dated 10.05.1996 shows that the signature is in one ink and the letters written in the cheque is in different ink which raises doubt about the genuineness of Ex.P.1. v. The complainant suppressed the material facts in his notice, Ex.P.4, complaint and in his chief examination and those materials are the issue of reply notice by the accused, Ex.D.1, and the particulars mentioned in the Ex.P.6, the rejoinder. Learned counsel for the Appellant, while assailing the Judgment of acquittal submitted that the learned Trial Judge has given the findings for acquitting the accused which are all contrary to the law and facts. It is also submitted by the learned Counsel for the Appellant that the complainant has complied with all the mandatory requirements contemplated under Section 138 of the Act. The learned counsel for the appellant also submitted that the Trial Judge has committed error of law by placing reliance on irrelevant factors such as omission of certain particulars in Ex.P.4, Statutory Notice and also the complainant has not given the reason for giving loan to the accused. It is also submitted by the learned counsel for the appellant that the learned Trial Judge has wrongly held that the cheque, Ex.P.1, was given by the accused as security, while availing the chit amount from M/s.Eswaran Chit Fund. The learned counsel for the appellant further contended that the accused has failed to rebut the presumption contemplated under Section 139 of the Act and as such it has to be held that the cheque, Ex.P.1, issued by the accused is towards the legally enforceable liability.
(3.) PER contra, Mrs.Vedavalli Kumar, learned counsel appearing for the respondent/accused contended that the learned Trial Judge has given clear and categorical reasons based on the materials available on record for passing the order of acquittal. The learned counsel for the respondent/ accused further submitted that the learned Trial Judge has rightly held that neither in Ex.P.4, statutory notice, nor in his complaint the complainant has stated the reason for giving loan of Rs.2,50,000/- to the accused. It is also contended by the learned counsel for the respondent/accused that there is absolutely no explanation given by the complainant that why the cheque issued on 10.05.1996 was deposited by him only on 23.08.1996, nearly after a period of three months, and that the conduct of the complainant itself throws considerable doubt about his version to the effect that the cheque, Ex.P.1, was issued by the accused towards the legally enforceable liability. It is also pointed out by the learned counsel for the respondent/ accused that the present version of the complainant in the deposition that he has deposited the cheque on 23.08.1996 at the instruction of the accused is neither mentioned in his statutory notice, Ex.P.4 nor mentioned in his complaint and therefore it is a clear case of afterthought and made only with a view to fill up the lacuna. The learned counsel for the respondent/accused also contended that several material factors were not mentioned in Ex.P.4, Statutory notice, sent by the complainant to the accused. It is further submitted by the learned counsel for the respondent/accused that the defence theory of the complainant receiving two blank cheques while the accused availed the chit fund amount through M/s.Easwaran Chit Fund running by the complainant is also probabilised by the materials available on record. The learned counsel for the respondent/accused lastly submitted that the accused has rebutted the presumption contemplated under Section 139 of the Act by eliciting answers in the cross-examination of the evidence of P.W.1, the complainant, as well as through circumstance and preponderance of probabilities of the case and the learned counsel placed reliance on the decision in BHARAT BARREL AND DRUM MANUFACTURING COMPANY VS. AMIN CHAND PAYRELAL reported in AIR 1999 SC 1008. I have given my careful consideration to the rival contentions put forward by either side. The entire perusal of records including the impugned judgment as well as the deposition shows that the complainant has chosen to examine himself to prove his case and also produced certain documents, Exs.P.1 to P.9. The sum and substance of the allegation of the complainant is that the accused borrowed a sum of Rs.2,50,000/- from him on 10.04.1996 and after repeated demand he has issued a cheque, Ex.P.1, dated 10.05.1996, for an amount of Rs.2,50,000/- in his favour and when the same was deposited in his Bank viz., State Bank of India, the cheque was returned with the endorsement "Insufficient Funds" and thereafter he has sent the statutory notice, Ex.P.4, calling upon the accused to settle the amount towards the dishonoured cheque and the accused in spite of receiving the same not settled the amount within 15 days from the date of receipt of the notice and thereby he has committed the offence under Section 138 of the Act. The undisputed fact remains that according to the complainant P.W.1, an amount of Rs.2,50,000/- was borrowed by the accused on 10.04.1996 but except the oral statement of P.W.1, there is no material produced by the complainant to prove that he has given the amount on 10.04.1996. It is also relevant to note at this juncture that P.W.1 has also not stated that whether he has given that amount by way of cash or by way of cheque in favour of the accused. Even in the notice, Ex.P.4, it is not stated by P.W.1 on what date he has given the amount to the accused though the present version is that he has given the amount on 10.04.1996 and it is also not stated about the mode of payment whether he has given that amount by cash or by way of cheque and it is also stoutly denied by the accused that he has issued the cheque, Ex.P.1 for an amount of Rs.2,50,000/- dated 10.05.1996. ;