The main legal point established is that in a case under Section 138 of the Negotiable Instruments Act, the complainant must prove the relationship between the accused and the issuer of the cheques, and fulfill the statutory notice requirements.

JUDGMENT :

G.K. Ilanthiraiyan, J.

1. This appeal is directed as against the order of acquittal dated 16.02.2007 made in C.C. No. 238 of 2002 on the file of the Judicial Magistrate No. I, Gobichettaipalayam.

2. The case of the appellant/complainant is that the respondent borrowed a sum of Rs. 1,50,000/- from him on 10.02.2002. The respondent/accused issued a post dated cheque dated 10.02.2002 towards discharge the said amount. Further on 28.02.2002 again the respondent/accused borrowed another sum of Rs. 2,00,000/- and issued another post dated cheque dated 28.02.2002 towards discharge of the said sum. On instructions when these cheques were presented for collection before the Indian Overseas Bank, Modachre Branch. They were returned for the reason that the payment stopped by the respondent/accused, by letter dated 05.08.2002. Therefore, the appellant/complainant filed the complaint to punish the accused under Section 138 of Negotiable Instruments Act.

3. The learned Judicial Magistrate, Coimbatore after taking cognizance against the accused in C.C. No. 238 of 2002 and after furnishing the copies to the accused, since the accused pleaded not guilty, examined witnesses P.W.1 to P.W.4 and marked Ex.P.1 to Ex.P.8. After closure of the evidence on both sides, the incriminating evidence as against the accused, were put to him for questioning under Section 313 of Cr.P.C. The accused denied the same as "false" however, in order to prove his case, he did not examine any witness and mark any documents. The trial Court after considering the evidence and materials available on record, acquitted the accused for the offence under Section 138 of Negotiable Instruments Act. Aggrieved by the said judgment of acquittal, the present appeal has been filed by the appellant/complainant.

4. The learned Magistrate acquitted the accused for the reasons that the accused is stranger to the complainant, and there was no need for him to borrow any amount. Further, statutory notice sent to the wrong address and as such not fulfilled the requirements under Section 138 Sub-Clause-1 (b) of Negotiable Instruments Act. Further once the accused rebutted the issuance of cheque, the burden, is shifted to the shoulder of the complainant and the complainant failed to prove the case beyond any reasonable doubts.

5. The learned counsel for the appellant would submit that the notice was sent to the proper address. But the accused cleverly returned the same so as to make it appear as in sufficient service. Once the issuance of cheque and the signature in cheque are accepted, it is presumed that the cheque has been issued only towards legally enforceable debt and the accused is liable to be prosecuted. The accused issued cheque with clear intention to cheat the appellant/complainant, since the cheque belongs to one M/s. T.S. Subramaniyam & sons Company and it was signed by the accused and issued. Therefore, the complainant proved his case and sought for conviction of the respondent.

6. The learned counsel for the respondent would submit that the accused never served any statutory notice as required under the provision of the Negotiable Instruments Act. Further, there is absolutely no relationship between the complainant and the accused and he had never seen him before and he did not know about the complainant. Therefore, there is absolutely no need for him to borrow any amount from the complainant. Further, he would submit that without obtaining any documents for the borrowal of Rs. 3,50,000/- is not at all possible from any person. In his cross examination, P.W.1 has categorically admitted that except the cheques, no other documents were obtained at the time of alleged borrowal of loan. It is also to be noted that admittedly at the time of borrowal itself, the cheques were obtained by the complainant. Therefore, he prayed for confirmation of the order passed by the learned Magistrate.

7. Heard the learned counsel for the appellant Mr. R. Marudhachalamoorthy and the counsel for