The main legal point established in the judgment is the requirement to prove the due execution of the cheque and the nature of the transaction to establish a legally enforceable liability under Section 138 of the N.I. Act.

M.V. Muralidaran, J.

This appeal is directed against the judgment dated 24.08.2011 of the learned Additional District and Sessions judge, Fast Track Court, Thirupathur made in C.A.No.3 of 2009, reversing the Judgment of the learned Additional District Munsif cum Judicial Magistrate Ambur in C.C.No.267 of 2007 dated 24.08.2008.

2. This is an appeal against acquittal preferred by the complainant in above C.C.No.267 of 2007 filed under Section 200 of Cr.P.C. as against the respondent for an offence punishable under Section 138 of N.I. Act.

3. Originally the appellant herein/complainant was successful in establishing his case before the Trial Court in C.C.No.267 of 2007 and thereby Trial Court holding the respondent guilty, convicted the respondent to undergo 2 years of Rigorous Imprisonment and a fine of Rs. 10,000/- and in default to undergo 6 months simple imprisonment.

4. Assailing the order of conviction made by the Trial Court, the respondent herein preferred Appeal in C.A.No.3 of 2009 wherein the appellate Court found fault with the finding of the Trial Court, thereby acquitted the respondent.

5. As against the order of acquittal the complainant by way of this Criminal Appeal seek to set aside the Order of lower Appellate Court dated 24.08.2011 and prays to confirm the order of conviction made by the Trial Court.

6. On perusal of the case records, it is seen that the Original Complaint is made by M.Nehru, the appellant herein through his power agent Kannaiah Naidu. It is relevant to note here that this Criminal Appeal is also being represented by the complainant's power Agent Kannaiah Naidu.

7. It is the case of the appellant/complainant that the respondent Vijaykumar had borrowed a sum of Rs. 2,25,000/-. In lieu of payment of the above debt, a cheque dated 06.08.2007 drawn on Punjab National Bank was issued to the complainant. As per the instruction of the respondent/accused the cheque was presented by the appellant for encashment on 17.09.2007. However, as the said cheque was returned dishonored for want of sufficient funds and despite of Notice there was no payment made by the respondent, the above complaint was lodged.

8. In the said circumstance, the complainant through his power Agent Kannaiah Naidu entrusting him to conduct the case on his behalf filed the complaint in C.CNo: 267 of 2007. Accordingly Kannaiah Naidu who also represents the appellant in this appeal before this court had hence filed a complaint under section 200 of Cr.P.C for an offence punishable under section 138 of N.I. Act on behalf of appellant.

9. To substantiate the complainant's case his power agent examined himself as PW1 and documents 1 to 5 were marked through him. Ex-P1 is the power deed dated 05.11.2007. Exs-P2, P3, P4 & P5 are the cheque, return memo of cheque, statutory notice of complainant and the reply notice issued by the accused respectively.

10. On the side of the respondent/accused there was no evidence in.

11. The learned trial judge on appraisal of oral and documentary evidence adduced by the appellant was pleased to found the respondent guilty of offence under N.I. Act towards the above dishonor of cheque and accordingly punished the respondent in above terms.

12. Contrarily on appeal by accused, the lower appellate Court reversed the said order of conviction on accused holding that the complainant failed to establish his case that there was a monetary transaction. More particularly the trial Court's finding is reversed on the ground that the power agent Kannaiah Naidu had deposed that he is totally unaware of the monetary transaction i.e., loan transaction. Therefore having disbelieved the complainant case and in the light of version of PW1 stating that he do not have any personal knowledge over the alleged transaction said to have taken place between the complainant and the accused, the lower Appellate Court set aside the conviction.

13. I heard Mr.T.R.Ravi, learned counsel for the appellant and Mr.T.Muruganantham, learned counsel