The failure to rebut the presumption under Sections 118 and 139 of the Negotiable Instruments Act can lead to a finding of guilt under Section 138 of the Act.

R. Mala, J.

1. This Criminal Appeal arises out of the judgment of acquittal dated 12.10.2011 made in C.C.No.161 of 2011 on the file of the learned Chief Judicial Magistrate, Erode.

2. The appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act stating that the respondent/accused borrowed a sum of Rs.1,00,000/- from the appellant/complainant on 08.06.2006 and agreed to pay back the same with interest at the rate of 24% per annum. On the same day, the respondent/accused issued a post dated cheque/Ex.P.1 dated 01.09.2008, for Rs.1,00,000/- on Indian Overseas Bank. When the post dated cheque/Ex.P.1 was presented for encashment by the appellant before Indian Overseas Bank, Erode, but it was returned as "account closed" as per return memo Ex.P.2. So the appellant/complainant on 12.09.2008 issued Ex.P.3 statutory notice to the respondent under Section 138 of Negotiable Instruments Act, which was evidenced by Acknowledgment Card/Ex.P.4. But the respondent/accused has not paid the cheque amount. Therefore, the appellant/complainant was constrained to file a private complaint against the respondent/accused under Section 138 of Negotiable Instruments Act.

3. The trial Court has taken cognizance of an offence, after recording the sworn statement and after following the procedure. Since the accused pleaded not guilty, the trial Court examined P.W.1 and Exs.P1 to P4 on the side of the appellant/complainant and on the side of the respondent/accused, D.W.1 and D.W.2 were examined and Exs.D1 to D3 were marked. The trial Court after considering the oral and documentary evidence, acquitted the accused for the offence under Section 138 of Negotiable Instruments Act.

4. Challenging the judgment of acquittal passed by the trial Court, the learned counsel for the appellant/complainant raised the following points:

(a) The respondent/accused has admitted his signature in the cheque/Ex.P.1 and so the Trial Court ought to have invoked the presumption under Sections 118 and 139 of Negotiable Instruments Act.

(b) Further, the son of the appellant/complainant was examined as D.W.2 and he has not support the case of the respondent/accused. But he was not treated as hostile witness.

(c) The case of the defence is that he had chit transaction with the appellant's son, namely, D.W.2 and at that time, he issued a cheque/Ex.P.1 as security and that has been used to filed a complaint. That factum was not proved by the respondent/accused and that has not been considered by the Trial Court.

(d) Hence, he prayed for convicting the respondent/accused.

5. Resisting the same, the learned counsel appearing for the respondent would submit that the Deputy Manager, Indian Overseas Bank, who was examined as D.W.1 has stated that there is no transaction from 01.07.1996 to 19.04.2011 in the bank account of the respondent/accused. So, the Trial Court has rightly held that the appellant/complainant has not proved that the cheque/Ex.P.1 has been issued for discharging legally subsisting liability. He would further submits that when two views are possible, the Appellant Court should not reverse the judgment of acquittal merely because the other view was possible. When the judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non-consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified. Hence, he prayed for dismissal of the appeal.

6. Considered the rival submissions made on both sides and perused the typed set of papers.

7. The case of the appellant/complainant is that the respondent/accused has borrowed a sum of Rs.1,00,000/- on 08.06.2008 and to discharge the same, he issued a cheque/Ex.P.1 dated 01.09.2008 for Rs.1,00,000/- and when that has been presented for encashment, it has been returned as “account closed” on 04.09.2008 under Ex.P.2. Statutory notice under Section 138(b) of Negotiable Instruments Act has been issued under Ex.P.3 and acknowledgment c