A mere issuance of a cheque is insufficient to prove liability; the complainant must establish the existence of a legally enforceable debt.

JUDGMENT :

G.ILANGOVAN, J.

1.This Criminal appeal is filed to call for the records and set aside the judgment passed in S.T.C.No.50 of 2015 dated 23.11.2022 on the file of the Judicial Magistrate No.1, Kuzhithurai and allow the Criminal Appeal.

2. The case of the prosecution in brief is that the accused is the friend of the complainant. On 24.11.2014, the accused borrowed a sum of Rs.3 Lakhs from him and issued a cheque drawn on Tamilnadu Mercantile Bank for the above said amount towards the discharge. It was presented for payment on 01.12.2014, which came to be returned due to account closed, on 02.12.2014. After completing the statutory formalities, the complaint was filed under Section 200 of Cr.P.C., to punish the accused for the offence under Section 138 of Negotiable Instruments Act. At the conclusion of the trial process, the trial Court found that the complainant has not established guilt of the accused beyond all reasonable doubts and so it rendered a judgment of acquittal. Against which this appeal has been preferred by the complainant.

3. Since it is a case of acquittal, re-appreciation of evidence is required. Now we will go to the evidence on record in this regard. It is the case of the complainant that the cheque was issued towards legally enforceable liability on the date mentioned in the cheque.

4. The defence was taken by the accused before the trial Court. It is true that the accused borrowed a sum of Rs.3 Lakhs in the month of November, 2010 and issued the cheque. But the above said loan amount was repaid in installments. To prove the discharge of the loan amount, on his side, the respondent herein examined R.W.2, the Branch Manager, attached to the Indian Overseas Bank, Kaliyakkavilai and who stated in her evidence that the accused is maintaining the current account in their Branch. He was issued with cheque book. Out of the total cheques issued, 17 cheques were issued in favour of the complainant. These 17 cheques were issued by the accused in favour of the complainant between 2011-2013. She produced statement of account of the accused. It is her further statement that all the 17 cheques were presented for payment. Two cheques were presented for payment before Indian Overseas Bank, Kaliyakavilai Branch, one cheque before Indian Overseas Bank, Samiyarmadam and rest 14 before Kaliyakavilai Branch. From the account maintained by the accused, the total amount of Rs. 1,89,500/- was encashed by the complainant. During cross examination she stated that after 2016 only four cheques were returned as dishonoured. So also, after 24.11.2014, there was no Bank transaction between the complainant and the accused through their Branch.

5. Now, we will go to the evidence of the complainant. He admits that some of the cheques issued by the accused were encashed by him. Details of which are available in the judgment itself which need not be repeated. But having admitted the above said encashment of cheque, he states that those cheque transactions are not relevant and has no connection with the present loan amount. This was doubted by the trial Court stating that prima facie, the accused has rebutted the presumption available in favour of the complainant under Section 139 of Negotaible Instruments Act.

6. Now we will go to the circumstances as to see whether the cheques issued in favour of the complainant encashed by him has no relevancy to the present complaint. As mentioned above, it is a specific case of the complainant that, the accused borrowed a sum of Rs.3 Lakhs on 24.11.2014. The cheque is antedated. As mentioned by R.W.2, there was no transaction in the account of the accused with the complainant after 24.11.201