The presumption of consideration under Sections 118 and 139 of the Negotiable Instruments Act applies unless disproven by the accused, and the burden cannot shift excessively onto the complainant.

JUDGMENT :

R. HEMALATHA, J.

1. Challenging the order of acquittal passed by the II Additional District Judge, Erode on 27.03.2017 in Crl.A.No.194/2016, the present appeal is filed by the appellant/complainant.

2. The appellant is the complainant in S.T.C. No.231/2015 on the file of the Judicial Magistrate, Fast Track Court – I, Erode.

3. The case of the appellant/complainant in a nutshell is as follows :

i. The respondent/accused borrowed a sum of Rs.4,00,000/- from the complainant on 06.01.2014 for her business purpose and issued a cheque bearing number 738824 (Ex.P1) drawn on IDBI Bank, Sathy Road, Erode Branch.

ii. According to the complainant, the accused promised to repay the principal amount of Rs.4,00,000/- along with interest at the rate of 12% per annum.

iii. When the cheque was presented by the complainant for collection on 19.02.2014 through his banker, viz., Punjab National Bank, Erode Branch, the same was returned on 20.02.2014 for the reason "Account Closed" as is seen from the cheque return memo (Ex.P2).

iv. Therefore, the complainant issued a statutory notice dated 27.02.2014 (Ex.P3) to the accused calling upon her to pay the amount due under the cheque within 15 days from the date of receipt of the notice.

v. The accused received the said statutory notice on 05.03.2014, as is evidenced by the postal acknowledgement card (Ex.P4) and sent a reply notice dated 17.03.2014 (Ex.P5), which according to the complainant contained false allegations.

vi. Therefore, the complainant filed a private complaint before the Judicial Magistrate, Fast Track Court No.I, Erode, under Section 200 Cr.P.C. against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (N.I. Act) in S.T.C.No.231/2015.

vii. The learned Judicial Magistrate, Fast Track Court No.I, Erode, took cognizance of the offence under Section 138 of the Negotiable Instruments Act (N.I. Act) and issued summons to the accused under Section 204 Cr.P.C.

viii. On the appearance of the accused, the copies of the records were furnished to her under Section 207 Cr.P.C. The substance of accusation made in the complaint was put to the accused and since the accused pleaded not guilty, the case was posted for trial.

ix. On the side of the complainant, the complainant examined himself as P.W.1 and marked Ex.P1 to Ex.P5.

x. When the accused was questioned under Section 313 of Cr.P.C., with regard to the incriminating circumstances appearing in evidence against her, she denied of having committed any offence. She examined herself and three other witnesses and marked Ex.R1 to Ex.R14.

xi. The learned trial court judge after analysing the oral and documentary evidence on record convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced her to undergo simple imprisonment for a period of six months and to a pay a compensation of Rs.4,00,000/- to the complainant under Section 357(3) Cr.P.C. in default, to undergo simple imprisonment for a period of one month, vide his judgment and orders dated 04.11.2016.

xii. Aggrieved over which, the accused filed an appeal in Criminal Appeal No.194/2016 before the II Additional District Judge, Erode. The learned II Additional District Judge, Erode, allowed the appeal and acquitted the accused on the following grounds :

a. The complainant had not proved his means to lend a sum of Rs.4,00,000/- to the accused.

b. The complainant did not also file his Income Tax Returns.

xiii. Now the present appeal is filed against the order of acquittal passed by the appellate court judge.

4. Heard Mr.S.Kamadevan, learned counsel for the appellant and Mr.M.Guruprasad. learned counsel for the respondent.

5. Mr.S.Kamadevan, learned counsel appearing for the appellant