An appellant must establish personal liability for a cheque under Section 138 of the Negotiable Instruments Act; mere presumption is insufficient without corroborative evidence.

JUDGMENT :

M.NIRMAL KUMAR, J.

The appellant as complainant filed a private complaint in C.C.No.89 of 2018 for offence under Section 138 of the Negotiable Instruments Act against the respondent. The trial Court, by judgment dated 28.10.2021, dismissed the complaint and acquitted the respondent, against which, the present appeal is filed.

2. The gist of the complaint is that the respondent/accused is the owner of land measuring an extent of 1 Acre 43 cents in S.No.246 in Andipalayam Village, Tiruppur Taluk, Tiruppur District and agreement for sale entered between the appellant along with one S.P.Natarajan with the respondent on 01.09.2014. The respondent agreed to sell the property at the rate of Rs.2,05,000/- per cent, totalling a sum of Rs.2,93,15,000/- to the appellant. The appellant as per the said agreement paid a sum of Rs.90,00,000/-, which was contributed by the appellant, his father-Padmanabha Chettiyar, his brother Shanmugam Chettiyar, his uncle-Dhananjayan Chettiyar and cousin brothers, Ravi Chettiyar and Dilli Babu Chettiyar and the respondent failed to honour the terms of the sale agreement and fraudulently sold the agreed property to third parties and made huge profits. The appellant along with his father, brother and relatives, who lent money to him, approached the respondent for refund of the sum of Rs.90,00,000/- along with interest. The respondent gave cheques during second week of October, 2017 to the appellant and others as security for the amount received and promised to repay the amount well before the cheque date. However, till the end of October, 2017, the respondent failed to pay back the amount. Hence, legal notice dated 15.11.2017 sent to the respondent to refund the sum of Rs.90,00,000/- along with 18% interest. Thereafter too, the respondent not paid the amount and responded to the notice. Hence, the cheque was presented during December, 2017 in the complainant's bank, namely, Indian Overseas Bank, Nolambur Branch, Chennai and the cheque returned for the reason 'funds insufficient' by bank memo dated 26.12.2017. Thereafter, statutory notice issued on 12.01.2018. The respondent received the statutory notice, thereafter neither paid the cheque amount nor sent any reply. Hence, complaint filed before the trial Court.

3. During trial, the complainant examined himself as PW1 and marked six documents, viz., Ex.P1-Sale Agreement dated 01.09.2014, Ex.P2-Legal Notice dated 15.11.2017, Ex.P3-Cheque dated 15.10.2017 for Rs.23,00,000/-, Ex.P4-Bank return memo dated 26.12.2017, Ex.P5/Statutory notice dated 12.01.2018 and Ex.P6-Postal Acknowledgement card. On the side of the defence, one Kamal examined as DW1 but no documents marked. On conclusion of trial, the trial Court dismissed the complaint.

4. The contention of the learned counsel for the appellant is that the trial Court had given undue importance to the answers given by the appellant in his cross examination, taking the answer in isolation without considering the context to which the answer given. In this case, the respondent not denied the cheque/Ex.P3 and the signature. Her defence is that Ex.P1-agreement for sale was between the appellant, S.P.Natarajan, partner of the appellant, and respondent. It was S.P.Natarajan, who paid advance amount of Rs.50,00,000/- on 01.09.2014. Thereafter on 04.09.2014, he paid Rs.10,00,000/- and on 18.12.2014 he paid Rs.5,00,000/- towards part amount of sale consideration and the respondent never met the appellant and not paid any amount. She further makes a claim that this advance amount of