The main legal point established in the judgment is that a cheque issued as security for a legally enforceable debt or liability falls under Section 138 of the Negotiable Instruments Act.

JUDGMENT

(Prayer: Criminal Appeal filed under Section 378 of Cr.P.C to call for the records in Crl.A.No.62 of 2019 on the file of the learned IV Additional Sessions Judge, Tirunelveli, reversing and setting aside the order of conviction dated 01.04.2019 passed in C.C.No.87 of 2013 on the file of the learned Judicial Magistrate, Valliyoor, Tirunelveli District and set aside the order of acquittal, dated 01.04.2019.)

1. This Appeal is directed as against the order of acquittal dated 16.04.2021 passed in Crl.A.No.62 of 2019 on the file of the learned IV Additional Sessions Judge, Tirunelveli, thereby reversing and setting aside the order of conviction, dated 01.04.2019 passed in C.C.No.87 of 2013 on the file of the learned Judicial Magistrate, Valliyoor, Tirunelveli District.

2. The appellant is the complainant and the respondent is the accused. The appellant lodged the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act alleging that the respondent is the friend of the appellant. The respondent received a sum of Rs.1,25,00,000/- through ICICI Bank cheques in the year 2010-2011 for purchasing landed properties at Vallioor in favour of the appellant. Since the respondent failed to purchase any land, the appellant demanded the respondent to re-pay the said amount. The respondent made certain re-payment and the balance due amount is Rs.43,00,000/-. They also agreed by agreement dated 24.05.2012 for the final settlement of Rs.43,00,000/-. In order to repay the said balance amount, the respondent issued cheque for the sum of Rs.43,00,000/- and the same was presented for collection. It was returned dishonoured for the reason that the 'funds insufficient'. After causing statutory notice, the respondent failed to pay the cheque amount. Hence, the appellant lodged the complaint and the same has been taken cognizance in C.C.No.87 of 2013 on the file of the learned IV Additional Sessions Judge, Tirunelveli.

3. On the side of the appellant, he himself was examined as P.W.1 and one Ganesan was examined as P.W.2 and marked Ex.P.1 to Ex.P.10 and on the side of the respondent, D.W.1 to D.W.4 were examined and Ex.D.1 to Ex.D.12 were marked. Through the Court, Ex.X.1 and Ex.X.2 were marked.

4. On a perusal of the oral and documentary evidence, the trial Court convicted the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo one year imprisonment and also ordered compensation under section 357(3) of Cr.P.C to the tune of cheque amount, namely Rs.43,00,000/- payable to the appellant herein.

5. Aggrieved by the same, the respondent preferred an Appeal in Crl.A.No.62 of 2019 on the file of the learned IV Additional District Judge, Tirunelveli and the Appellate Court set aside the conviction and sentence imposed on the respondent and acquitted him for the offence punishable under Section 138 of the Negotiable Instruments Act. Challenging the order of acquittal passed in Crl.A.No.62 of 2019 on the file of the learned IV Additional District Judge, Tirunelveli, the appellant has preferred the present Criminal Appeal.

6. The learned counsel appearing for the appellant would submit that Ex.P.6 is a complete document together with various endorsements. It clearly prove the nature of transaction between the appellant and the respondent and thus, the initial burden of the appellant to establish the nature of transaction and liability by the respondent stood fully discharged by the appellant and as such, the burden of the respondent under Section 139 as well as Section 118 of the Negotiable Instruments Act got activated, in which the respondent had miserably failed to rebut the evidence of the appellant. The trial Court rightly held and convicted the appellant. Whereas, the first Appellate Court held that the cheque in question was issued as a security and hence, it could not have been acted upon. Even assuming that though not admitting the cheque was issued as a se