The burden of proof lies with the complainant to independently establish liability; weaknesses in the defence do not suffice to secure a conviction.

JUDGMENT :

D.BHARATHA CHAKRAVARTHY, J.

This appeal is directed against the Judgment of the Additional Sessions Judge, Villupuram at Kallakurichi, dated 11.02.2021, made in Criminal Appeal No.61 of 2019. By the said Judgment, the learned Additional Sessions Judge allowed the appeal and upturned the finding of conviction for an offence under Section 138 of the Negotiable Instruments Act, into one of acquittal and set aside the sentence imposed against the respondent-accused. Against the same, the present appeal is filed by the Appellant.

2. Heard the learned counsel appearing on behalf of the appellant/complainant and the learned counsel appearing on behalf of the respondent/accused.

3. The learned counsel appearing on behalf of the appellant, while taking this court through the records, submitted that, firstly, when the accused issued a demand notice as per Section 138 of the Negotiable Instruments Act, the respondent-accused issued a reply stating that the cheque was misplaced or stolen. Even as per the said defence, no complaint whatsoever was lodged by the respondent accused. In any event, it is hard to believe that the individual would have kept the signed cheques to be stolen by third parties. More than that, the subsequent evidence in the trial proves that all the other subsequent leaflets in the cheque book were presented for collection to the bank, and therefore the very version that the entire cheque book was lost was proved to be false. The other defence of the accused, which was taken in the said legal notice is that the accused suffered an accident and was unwell and even was mentally affected and was taking treatment for his mental health. Absolutely no iota of evidence was presented on behalf of the accused regarding the same; therefore, when statements made in reply to the complainant’s demand are either absolutely false or they turn out to be totally unsubstantiated, then, when the complainant has otherwise proved the ingredients by marking the cheque, the return memo, and the demand notice, and when the presumption under the Negotiable Instruments Act, 1881, comes to the aid of the complainant, the Appellate Court committed a grievous error in overturning the findings of the Trial Court. More so, when the Trial Court has appraised the evidence and come to the conclusion that the defence made by the respondent/accused is unbelievable and returned the finding of guilt.

4. The learned counsel would also further submit that the manner in which the complainant was cross-examined would itself adumbrate that the respondent side has admitted the fact of borrowing. Once the same is admitted, and when the signature on the cheque is not denied, the respondent-accused has done absolutely nothing to rebut the presumption to the level of a preponderance of probability; therefore, the findings of the First Appellate Court are absolutely perverse and not sustainable at all. Therefore, he would pray that this Court should reverse the findings made in the above judgment and restore the judgment of the Trial Court.

5. Per contra, the learned counsel appearing on behalf of the respondent-accused would submit that when the complainant was cross-examined with reference to the date of advancement of the loan, he himself admitted that he has advanced the loan two months after the accident of the accused and in the same breath, he has also admitted that the accused was taking treatment in the Ganga Hospital for a period of six months from the date of accident. Therefore, the Lower Appellate Court appraised the said evidence and came to the conclusion that the version of the complainant is unbelievable. It is true that the accused