The acquittal in dishonor of cheques was justified as the Complainant failed to prove the issuance and non-payment of cheques under Section 138, leading to abuse of process of law.

JUDGMENT :

SATHI KUMAR SUKUMARA KURUP, J.

1. These Appeals have been filed to set aside the Order of acquittal recorded in C.C. Nos. 79 & 78 of 2011 dated 17.06.2015 by the learned Judicial Magistrate, Cheyyar, Thiruvannamalai District.

2. Both the Appeals have been preferred by the Complainant against the Respondent. As the issues involved in both the Appeals are inter-twined and inter-related with each other and the learned Counsel for both sides advanced common arguments, they are taken up for hearing together and disposed of by this common judgment.

3. The Appellant, as Complainant, has filed two complaints in C.C. No. 78 of 2011 and C.C. No. 79 of 2011. In both the Complaints, it was alleged that the Respondent/Accused obtained a hand loan of Rs.1,78,000/- and Rs.1,00,000/- respectfully from him and to repay the loan amount, two cheques bearing Cheque No. 684129 and 684130 drawn on State Bank of India, Thachur Branch have been issued. When the cheques were presented for clearance, they were returned with a return memo indicating “insufficient funds” to honour the cheque in the bank account maintained by the Respondent/Accused. Immediately, the Complainant/Appellant issued a legal notice dated 31.01.2011 intimating about the dishonour of the cheque and called upon the Respondent/Accused to repay the cheque amount. After issuing the notice dated 31.01.2011, the Appellant realised that the name of the Accused bank was erroneously mentioned as Thattacheri Branch, instead of Thachur Branch. Therefore, the Complainant/Appellant once again issued another notice on 01.02.2011. For the notice dated 01.02.2011, a reply notice dated 17.02.2011 was issued by the Respondent/Accused repudiating the averments contained in the statutory notice. Therefore, the Complainant has filed the complaints in C.C. Nos. 78 and 79 of 2011.

4. The complaints were taken on file on 08.06.2011 and summons were issued to the Respondent/Accused. On his appearance, the copies of the complaint were furnished to him under Section 207 of Cr.P.C.. When the Respondent was questioned, he denied the charges and claimed to be tried. Therefore, trial commenced during which the Complainant/Appellant, along with one Muthukumaran were examined as P.W-1 and P.W-2 and Ex.P-1 to Ex.P-10 were marked. On behalf of the Respondent/Accused, the Respondent/Accused along with one Shankar examined themselves as D.W-1 and D.W-2 and Ex.D-1 to Ex.D-5 were marked.

5. The trial Court, on appreciating the oral and documentary evidence, concluded that the Complainant had taken a different stand during his examination as P.W-1 which is contrary to the pleadings in the complaint. To be specific, in the complaint, there was nothing to show as to how the amount was paid to the Respondent/Accused viz., by cheque or cash or any other mode. But in the deposition as P.W-1, he has stated that the loan amount was paid in cash. Further, the trial Court placed reliance on Ex.D-5, receipt issued by the Complainant himself to the effect that the loan amount taken from the Respondent/Accused has been received. Thus, after receiving the entire loan amount, the complaints have been filed in C.C. Nos. 78 and 79 of 2011. Further, on behalf of the Complainant, written arguments have been filed in which no reference was made to Ex.D-5. Therefore, the trial Court has concluded that the complaints have been filed after receipt of the entire loan amount and thereby wasted the precious judicial time of the Court. Accordingly, the trial Court dismissed both the complaints and acquitted the Respondent/Accused, with costs of Rs.10,000/- payable by the Complainant.

6. Challenging the judgment of acquittal dated 17.06.2015 passed in C.C. Nos. 78 and 79 of 2011, the present Criminal Appeals are filed by the Appellant.

7. The learned Counsel for the Appellant submitted that the trial Court placed heavy reliance on Ex.D-5, a receipt sai