The statutory presumption under Section 139 of the Negotiable Instruments Act does not apply when the complainant fails to provide sufficient details of the loan transaction.

JUDGMENT

The appellant/complainant had filed a private complaint under Section 138 of the Negotiable Instruments Act against the respondent in C.C.No.61 of 2018. The trial Court by judgment dated 11.09.2020, dismissed the complaint discharging the respondent, against which, the present appeal is filed.

2.The learned counsel for the appellant submitted that the appellant and respondent are neighbours, known to each other and they had a good relationship. For the urgent needs, the respondent requested for hand loan and the appellant had given hand loan of Rs.25,00,000/- during January, 2016 and the respondent promised to repay the loan amount within two years. In discharge of the said liability, the respondent gave a cheque bearing No.140221 dated 04.12.2017 during November, 2017. Thereafter the cheque was presented on 19.12.2017, which was returned for the reason 'Funds Insufficient'. Following the same, statutory notice/Ex.P3 issued on 26.12.2017. The respondent received the notice and the acknowledgement card dated 02.01.2018 marked as Ex.P4.

3.The appellant to prove his financial capability has filed Income Tax returns/Ex.P5. The copy of the sale deed document dated 25.04.2018 marked as Ex.P6 and the other cheques, which were given during the transaction, marked as Exs.P6A and P7. The Mortgage Deed of the properties by which, the appellant generated the amount were marked as Exs.P8 to P10 and the sale agreement between the appellant and the respondent were marked as Exs.P11 and P12. In this case, the respondent examined herself as DW1 and marked Exs.D1 and D2. The respondent agreed about the issuance of the cheque and also not denied the signature in the cheque. The only defence taken by the respondent is that the respondent agreed to purchase the property from one Saradha, mother-in-law of the appellant, this sale could not fructify and at that time the cheque was given as security, which was blindly accepted by the trial Court. When the appellant not denied the signature and issuance of cheque, the trial Court ought to have convicted the respondent. Hence, prayed for setting aside the judgment of acquittal.

4.The learned Legal Aid Counsel appearing for the respondent submitted that in this case the complaint is with flaw. Right from the beginning, the appellant/complainant has been making false statements. He states that the appellant and respondent are neighbours and due to this relationship he gave a loan of Rs.25,00,000/-. Even the admitted position as per the complaint and the statutory notice, which carries the address of the complainant in Periyar Nagar, Thiruninravur and the respondent address at Avadi, which is a far of place and they were never living as neighbours. Likewise the appellant states that the loan was taken in the month of January, 2016 and agreed to repay after two years, but for what reason the post-dated cheque, dated 19.12.2017 was given during November, 2017, there is no explanation.

5.In this case, according to the respondent, the respondent entered into a sale agreement with Saradha to purchase a property. For collecting documents of the property and also to visit the property and verify the same, security cheques were given. Later the respondent found that the title of the property is with some dispute, she had not purchased the property. Hence, she handed over the document and withdrew the agreement for sale. The appellant having the signed security cheque, which was given earlier, has received the same from his mother-in-law Saradha and thereafter filled up the cheque and presented the cheque as though it has been issued with liability. In the notice as well as in the complaint there is no details given with regard to the particulars of issuance of the cheque. Further in the complaint and notice there is only reference to one cheque. During cross examination, the appellant admits that 4 cheques were received from the respondent. Hence, the appellant not come with clean hands and he has got no reso