The appellant failed to establish the existence of a loan to support the cheque under Section 138, and once the accused probablized his defence, the evidential burden shifted back to the complainant.

JUDGMENT :

M. Nirmal Kumar, J.

The appellant as complainant filed a private complaint against the respondent for offence under Section 138 of Negotiable Instruments Act, 1881 before the learned Judicial Magistrate (Fast Track Court No.I), Erode (trial Court). The trial Court by judgment dated 09.08.2016 convicted the respondent for offence under of Negotiable Instruments Act, 1881 and sentenced to undergo Simple Imprisonment for six months and to pay a fine of Rs.5,000/-, in default to undergo 15 days Simple Imprisonment. Challenging the same, the respondent preferred an appeal before the learned II Additional District and Sessions Judge, Erode (lower appellate Court) in Crl.A.No.157 of 2016 and the same was allowed by judgment dated 14.12.2016 setting aside the conviction of the trial Court. Aggrieved over the same, the present Criminal Appeal is filed by the appellant/complainant.

2.Gist of the case is that the appellant and respondent were known to each other for the past five years prior to the issuance of cheque (Ex.P1). On 27.11.2013, the respondent approached the appellant/complainant at his residence and obtained a loan of Rs.3 lakhs promising to repay the principal and interest. In discharge of said liability, on the same day, the respondent issued a cheque (Ex.P1) dated 28.01.2014 bearing No.124908 for a sum of Rs.3 lakhs drawn on Canara Bank, Erode Kacheri Main Road, Erode Branch. When the cheque presented by the appellant for encashment on 28.01.2014 in Karur Vysya Bank, Erode Branch, the same returned with a bank return memo dated 29.01.2014 (Ex.P2) for the reason “funds insufficient”. On 31.01.2014 the appellant sent statutory notice (Ex.P3) to the respondent, but the same not received and returned on 11.02.2014 with return cover (Ex.P4). Thereafter, following the statutory procedure, complaint filed before the trial Court. During trial, the appellant examined himself as PW1 and marked Exs.P1 to P4. On the side of the defence, DW1 to DW4 examined and Exs.D1 & D2 marked. On conclusion of trial, the trial Court convicted the respondent and the same was set aside by the lower appellate Court on appeal. Challenging the same, the present Criminal Appeal is filed by the appellant/complainant.

3.Learned counsel for the appellant submitted that the contention of the respondent is that he does not know the appellant and not obtained any loan from the appellant. Earlier the respondent took loan from one Gopalakrishnan/DW1, a Financier for a sum of Rs.1 lakhs, at that time, the respondent handed over six signed blank cheques bearing Nos.903 to 908, thereafter, the respondent repaid the principal and interest of Rs.1,30,000/- to DW1, but the blank cheques not returned to the respondent. Due to delay in repayment of the loan, earlier Gopalakrishnan/DW1 sent notice to the respondent through his Advocate Mr.V.Sampath, who had office at No.10 Law Chamber, Sampath Nagar. The address mentioned in the statutory notice (Ex.P3) dated 31.01.2014 is one and the same. Thus, the cheque (Ex.P1), which was given to Gopalakrishnan/DW1, was misused by the appellant and filed the above case. The other ground raised by the respondent that the appellant had no wherewithal to give loan of Rs.3 lakhs, is rejected by the trial Court. Further the respondent took a stand that the statutory notice (Ex.P3) was sent to the Office of Tamil Nadu Electricity Board, Vijayamangalam, on that day, the respondent not posted there and he was working at Erode Office, hence, there is no proper service of notice in this case. The trial Court finding that the defence taken by the respondent is unacceptabl