The burden of proof on the complainant to establish the legally enforceable liability under Section 138 of the Negotiable Instruments Act, 1881, and the importance of the date of presentation of the complaint for the purpose of limitation.

JUDGMENT :

(Prayer: Criminal Appeal is filed under Section 378 of Cr.P.C., to set aside the judgment, dated 11.12.2018 passed in C.A.No.255 of 2016 on the file of the learned I Additional Sessions Judge, Chennai and confirming the order, dated 09.09.2016 in C.C.No.2712 of 2010 on the file of the learned Metropolitan Magistrate, F.T.C-IV, G.T, Chennai.)

1. The complainant, in a private complaint filed complaining an offence under Section 138 of the Negotiable Instruments Act, 1881, is the appellant before this Court. The appellant filed a complaint alleging that the appellant and the accused are known to each other well and the accused, to discharge his urgent expenses, had borrowed a sum of Rs.6,00,000/- on 10.02.2009, agreeing to repay the same with interest at the rate of 18% per annum. In discharge of the said liability, the accused issued the cheque, dated 07.07.2009 and when the cheque was presented for collection, the same is returned as “funds insufficient”. After issuing a demand notice and since the respondent/accused failed to make payment within the period of 15 days, the complaint was filed.

2. After recording the sworn statement and taking cognizance, the accused was summoned. Upon questioning, the accused denied the charge and stood trial. The complainant examined himself as P.W.1 and one Amararam as P.W.2. On behalf of the complainant, the original cheque was marked as Ex.P-1; the return memo as Ex.P-2; the debit advice as Ex.P-3 and the demand notice as Ex.P-4. Upon questioning about the material evidence on record, the accused denied them as false. Thereafter, on behalf of the defence, the accused examined himself as D.W.1, one D. Saral as D.W.2 and one J. Narasimma Rao as D.W.3. On behalf of the accused, the plaint filed in O.S.No.545 of 2011 was marked as Ex.D-1; the return statement in the said suit was marked as Ex.D-2; the reply notice, issued by the accused to the demand notice, was marked as Ex.D-3; the letter given by I.N.G. Vysya Bank was marked as Ex.D-4; the private complaint filed by the accused at Rajhamundry was marked as Ex.D-5 and the bank statement of the accused was marked as Ex.D-6. Thereafter, the Trial Court proceeded to hear the learned Counsel on both sides and by its judgment, dated 09.09.2016, found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881 and imposed a sentence of six months Simple Imprisonment and to pay a compensation of Rs.7,00,000/- to the complainant.

3. Aggrieved by the same, the respondent/accused preferred Crl.A.No.255 of 2016 and the learned I Additional Sessions Judge, Chennai, by a judgment, dated 11.12.2018, upturned the finding of the guilt into one of acquittal, as against which the present appeal is filed.

4. Heard Mr. E.J. Ayyappan, learned Counsel for the appellant and Mr. A. Ramaswamy, learned Counsel for the respondent.

5. The learned Counsel for the appellant would submit that first and foremost, the reasons given by the appellant in not believing the original presentation of the complaint and holding that the complaint is presented beyond the period of limitation and that condonation of delay was also not filed and acquitting the accused, is unsustainable in law. He would submit that the complaint was duly presented, albeit, before the wrong Court. However, the presentation was recorded and the matter was returned with an endorsement to represent before the concerned Court, having territorial jurisdiction. Accordingly, instead of representing the complaint within a period of 30 days, the matter was represented along with 5 days delay in representation. The appropriate Court took the complaint on file and proceeded with the matter. Therefore, he would submit that the same would not in any manner bar the complaint as hit by limitation. Therefore, he would submit that the order of acquittal granted by the lower Appellate Court, is unsustainable.

6. He would further submit that as far as the other allegations, which are con