The presumption against the issuer of a bounced cheque under Section 138 of the NI Act can be rebutted by proving the non-existence of the debt or liability.

JUDGMENT

(Prayer: Criminal Appeal has been filed under Section 378 of Cr.P.C., to set aside the judgment dated 28.09.2018 passed in C.A.No.69 of 2018 on the file of the Court of Second Additional District Sessions Judge, Erode reversing the judgment dated 07.02.2018 passed in S.T.C.No.157/2017 on the file of the Judicial Magistrate, Fast Track Court No.1, Erode by allowing the present appeal and convict the respondent in accordance with law.)

1. The police referred by one Eswaramoorthy, who is the complainant in S.T.C.No.157 of 2017 on the file of Judicial Magistrate, Fast Track Court No.1, Erode.

2. A complaint under Section 138 of the Negotiable Instruments Act, 1881 was filed by the appellant herein alleging that the respondent/Archana Sabarwal, on 05.12.2015 approached him for a hand loan of Rs.8,00,000/- to meet out her business purpose and received it. To discharge the said loan, she gave a post dated cheque dated 21.01.2016 drawn on State Bank of Patiala, R.S.Puram, Coimbatore bearing No.832537 for Rs.8,00,000/- and promised that the cheque will be honoured on presentation and also she promised to pay 12% interest for the loan amount. When the cheque was presented on 21.01.2016 at Erode District Central Co-operative Bank, where the complainant have account, the cheque was returned for “insufficient of fund” along with the memo dated 27.01.2016. Immediately, on receipt of the returned cheque the complainant sent a notice through his counsel on 02.02.2016 calling upon the accused to pay the cheque amount or else to face the consequence. The respondent received the registered notice on 10.02.2016 but failed to reply. Therefore the complaint was filed and the same was taken on file by the Judicial Magistrate, Fast Track Court No.I, Erode and assigned S.T.C.No.157 of 2017.

3. To prove the averments made in the complaint, the complainant examined himself and his daughter Ruby to show that, he had sufficient source to advance the loan amount of Rs.8 lakhs and cheque marked as Ex.P1 was issued by the respondent to discharge the loan amount. The return memo, notice copy and title deed of the property held by the complainant were marked as other exhibits to show income and the salary certificate of PW2 was marked as Ex.P-7.

4. In defence, the respondent mounted the witness box and marked four exhibits to show that she sold her properties between the months of April and December 2014 and had sufficient fund in her hand. Hence, she had no necessity to borrow Rs.8,00,000/- from the complainant. It is also contended by the respondent that the said cheque Ex.P1 was not issued by her and the signature found in it was not her signature. She had no acquaintance with the complainant and she does not know him.

5. The trial Court however found that the defence taken by the accuse has not been properly proved by the defence and having not proved that the cheque was not signed by her, the presumption against her squarely attracts.

6. Aggrieved by the said judgment, the respondent preferred appeal before the II Additional District and Sessions Judge, Erode in C.A.No.69 of 2018. The Appellate Court after reappreciated the evidence held that the foundation fact that a sum of Rs.8 lakhs was advanced to the accused not proved. No corroboration to support the case of the complainant about the debt. The accused in the cross-examination stated that the cheque was given to her husband and she is not aware how the cheque reached the complainant. The lower appellate Court admitting and accepting the explanation given by the accused that by selling a property she had sufficient fund is in her hand and there was no necessity for her to borrow money to improve her business reversed the finding of the trial Court and acquitted the appellant/accused.

7. Being aggrieved by the reversal judgement, the present appeal is filed by the complainant.

8. The learned counsel appearing for the appellant submitted that the accused on receipt of the statutory notice did not reply