The presumption of consideration in cheque cases can be rebutted by the accused, shifting the burden to the complainant to prove the debt, which was not satisfied in this case.

JUDGMENT :

This Criminal Appeal had been filed to set aside the Judgment passed by the learned Judicial Magistrate No.I, Cuddalore acquitting the Accused in STC.No.126 of 2011, dated 14.08.2012.

2. The brief facts, which are necessary for disposal of this Criminal Appeal, are as follows:-

2.1. The Appellant herein is the Complainant. The Complainant had filed the Complaint in S.T.C. No. 126 of 2011 alleging that on 01.09.2008, the Respondent herein had borrowed a sum of Rs.5 lakhs from him for business purpose. Subsequently, on 13.10.2008, a cheque for Rs.5 lakhs was issued by the Respondent towards the said loan amount. However, when the cheque was presented for collection on 13.10.2008, it was dishonoured by the bankers of the Respondent on 15.11.2008. Therefore, for having caused the dishonour of the cheque, a legal notice dated 17.11.2008 was issued by the Complainant for which a reply notice dated 03.12.2008 was issued with false and untenable averments. Therefore, the complaint was filed by the Appellant/Complainant.

2.2. Before the trial Court, the Complainant examined himself as P.W-1 and one Ravirajan was examined as P.W-2. Ex.P-1 to Ex.P-7 were marked by the Complainant. On behalf of the Accused, one Mr.Thamaraiselvan was examined as D.W-1 and documents Ex.D-1 and Ex.D-2 were marked.

2.3. The trial Court, on considering the oral and documentary evidence, by referring to the deposition of P.W-1 in his cross-examination that what was borrowed by the Respondent is only Rs.3 lakhs, declined to accept the case of the Complainant. The trial Court also pointed out that even though the Complainant filed Ex.P-7, balance sheet as on 31.03.2009, the author of the said document was not examined and Ex.P-7 was not a certified copy issued by the Income Tax Department. Even in Ex.P-7, there is nothing to show that the outstanding loan of Rs.5,00,000/- is to be received from the Respondent/ Accused. Above all, the trial Court, by referring to the reply notice of the Respondent pointed out that the Respondent had clearly stated that at the time of borrowing loan, 2 promissory notes, signature in 3 blank papers and five cheques in blank was issued and one such cheque was the cheque in question. Therefore, the trial Court had concluded that when the Respondent/Accused had successfully rebutted the initial presumption raised by the Complainant, by way of reply notice, the burden shifts on the Complainant to disprove the same. In the present case, the Complainant failed to discharge the burden by sending a rejoinder to the reply notice and therefore, by the judgment dated 14.08.2012, the trial Court acquitted the Respondent/Accused.

2.4. Challenging the judgment of acquittal dated 14.08.2012 in S.T.C. No. 126 of 2011, the present Criminal Appeal is filed.

3. The learned Counsel for the Appellant submitted that the Respondent borrowed Rs.5,00,000/- on 01.09.2008 for business purpose and agreed to repay the same within a week. For this purpose, the Respondent issued the cheque for Rs.5,00,000/- bearing cheque No.071019 drawn on Corporation Bank, Pondicherry in favour of the Complainant. When the cheque was presented for collection on 13.10.2008 it was returned on 15.11.2008 for the reason “funds insufficient”. Therefore, the Complainant issued a legal notice on 17.11.2008 calling upon the Accused to repay the cheque amount for which the Accused sent a reply notice. In order to prove the averments in the complaint, the Complainant examined himself as P.W-1, another person as P.W-2 and marked documents under Ex.P-1 to Ex.P-7. The learned Counsel for the Appellant invited the attention of this Court to the impugned Judgment wherein it had been observed as follows:

“9. As submitted by the learned Counsel for the Complainant the evidence of P.W-1 and P.W-2 and Ex.P-1 to Ex.P-3 reveals that the Accused borrowed Rs.5,00,000/- for which he issued the cheque in Ex.P-1 and the same was returned as funds insufficient through Ex.P-2 for which a demand for rep