JUDGMENT :

(Prayer: Criminal Appeal preferred under Section 378 Cr.P.C., against the judgment dated 18.02.2011 made in C.A.No.2 of 2007 passed by the learned Additional Sessions Judge/Fast Track Court No.II, Ranipet, Vellore in reversing the Judgment dated 10.04.2007 made in C.C.No.210 of 2002 passed by the learned District Munsif Cum Judicial Magistrate, Arcot.)

1. This criminal appeal has been filed against the order of acquittal passed in Criminal Appeal No.02 of 2007 by the Additional Sessions Judge, Fast Track Court-II, Ranipet, Vellore District, dated 18.02.2011, is being challenged in the present criminal appeal.

2. The appellant herein as complainant has filed a complaint under Section 138 of the Negotiable Instrument Act, wherein, the present respondent has been shown as sole respondent/accused.

3. It is averred in the complaint that the respondent /accused borrowed Rs.2,25,000/- for the purpose of his business. Towards its repayment, the respondent/accused issued a cheque marked as Ex.P.1 dated 01.07.2002 drawn on State Bank of India, Ranipet, for Rs.2,25,000/-. The appellant/complainant presented it for collection to his Bank. The State Bank of India, Arcot, vide memo marked as Ex.P.2, the drawee Bank returned it for the reason “exceeds arrangement” The dishonour of the cheque was intimated to the complainant by the Bank vide its memo dated 04.07.2002. The appellant/complainant issued a demand notice on 08.07.2002-Ex.P.4, asking the respondent/accused to repay the amount within 15 days. On 22.07.2002, the accused issued a reply, Ex.P.5, alleging theft of the cheque by the complainant. On 12.08.2002, the complainant presented a written complaint to the trial Magistrate under Section 138 of the Negotiable Instruments Act.

4. After giving opportunity to both sides, the trial court held that the cheque in question has been issued by the respondent/accused for discharging the liability and the contention of the respondent/accused that the said cheque leaf had been stolen by the appellant/complainant cannot be sustained. The trial court thus finding the respondent/accused as guilty of offence under Section 138 of the Negotiable Instruments Act, sentenced him to undergo rigorous imprisonment for two years and also directed him to pay Rs.2,25,000/- to the complainant.

5. As against the said conviction, the respondent/accused preferred Criminal Appeal No.02 of 2007 before the Additional Sessions Court, Ranipet, Vellore, on the ground that the accused has signed the cheque in the capacity of one of the partners of M/s.Lakshmi Engineering Works, but the firm was not shown as one of the accused in the complaint and further the complaint does not disclose that the accused is responsible for the day to day affairs and management of the firm. The accused also took a ground that there was no legally enforceable liability towards repayment on such a debt.

6. The Additional Sessions Court, Ranipet, Vellore, after considering the available evidence on record reversed the conclusion of the trial Court and dismissed the complaint by way of holding that even though assuming Ex.P1 has been issued by the accused in his capacity as a partner of the firm, there is no averment either in the complaint or in sworn statement in the complaint that the accused had been in charge of day to day affairs of the firm at the time of issuance of the cheque. It is the duty of the complainant to plead and establish the liability of the accused as a partner of the firm and he was in charge of the day to day affairs of the firm. The first appellate Court further pointed out that the complainant himself concedes that Rs.2,25,000/- constitute aggregate of small amounts borrowed by the accused and neglected to furnish the breakup details. In that view of the matter, the court below, held that the argument of the accused that the presumption under Section 138 of the Act has been rebutted cannot be ignored and as there is no specific averment in the complaint as to the