ORDER :

This Criminal Appeal is preferred by the appellant/complainant against the order passed by the learned XVIII Additional Sessions Judge, Chennai dated 04.09.2018 in C.A.No.175/2018, acquitting the accused for the offence under Section 138 of Negotiable Instruments Act, 1881.

2. The appellant is complainant and respondent is accused. The appellant filed a complaint before the learned Metropolitan Magistrate, Fast Track Court – IV, George Town, Chennai, for the offence under Section 138 of Negotiable Instruments Act and the learned Magistrate after enquiry convicted the accused and sentenced him to undergo six months Simple Imprisonment and to pay a compensation of Rs.10,00,000/- to the complainant under Section 357 (3) Cr.P.C., within one month and in default payment of the compensation, the accused shall undergo a further period of two months Simple Imprisonment. Challenging the said conviction and sentence, the respondent/accused filed C.A.No.175 of 2018 before the XVIII Additional Sessions Judge, Chennai. The learned Additional Sessions Judge, Chennai after hearing arguments, allowed the appeal and set aside the judgment of conviction and sentence passed by the learned Metropolitan Magistrate.

3. Aggrieved against the judgment dated 04.09.2018, the appellant/complainant is before this Court with the present appeal.

4. The learned counsel for the appellant would submit that the respondent/accused borrowed a sum of Rs.10,00,000/- in October 2013 from the appellant and issued two cheques each Rs.5,00,000/- dated 27.01.2015 drawn on DCB Bank Limited. When the appellant/complainant presented the cheques for encashment, the same were returned as “insufficient funds”. Hence the appellant issued legal notice and even after receipt of the legal notice, neither the respondent repaid the amount, nor sent any reply. Therefore, the appellant constrained to file a criminal complaint against the respondent for the offence under Section 138 of Negotiable Instruments Act. The learned Magistrate has rightly convicted the respondent/accused to undergo six months simple imprisonment and also directed him to pay the compensation of Rs.10,00,000/- to the appellant/ complainant. However, the Appellate Court, without considering the materials, simply allowed the appeal and set aside the judgment passed by the learned Metropolitan Magistrate. He would further submit that the respondent has admitted the borrowal of money and executed the cheques and executed the two promissory notes (Exs.P.11 and P.12) and hence the appellant has proved his case. The lower Court had rightly come to the conclusion that when the execution of the cheques are admitted, it is for the respondent/accused to rebut the presumption under Section 118 and 139 of NI Act. However, the respondent/accused failed to rebut the said legal presumption and hence the learned Magistrate had rightly convicted the petitioner. However, the learned Sessions Judge failed to consider the same and allowed the appeal, which warrants interference.

5. The learned counsel for the respondent/accused would submit that the cheques were issued in the name of Vaagai Business Services and Education Private Limited, and the complainant instituted the case without adding the company as a party, whereas the appellant issued legal notice in the name of the respondent/accused and not issued in the name of said company. He would further submit that the appellant / complainant filed the complaint against the respondent stating that cheques were issued by the Company, but, the appellant/complainant neither added the company as a party nor served notice to the Company. In the absence of company being served with notice, prosecution of accused is not maintainable, that too, when there is no demand notice against the Company, which is a precondition under Section 138 of the Negotiable Instruments Act and therefore, the complaint itself is not maintainable. In support of his contentions, the learned counsel has cite