An appellate court must refrain from overturning an acquittal unless clear evidence of wrongful appreciation of facts or perverse findings by the trial court is evident.

JUDGMENT :

M. NIRMAL KUMAR, J.

1. The appellant as complainant filed a private complaint in S.T.C.No.754 of 2017 for offence under Section 138 of the Negotiable Instruments Act against the respondents. The trial Court, by judgment dated 01.02.2020, dismissed the complaint and discharged the respondents, against which, the present appeal is filed.

2. The complaint is that the appellant and the respondents 2 and 3 are known to each other. The second respondent is the Managing Director-cum- authorised signatory for the first respondent-company. The third respondent is the Partner of first respondent-company. On 04.03.2016, the respondents 2 and 3 came to the appellant’s house and borrowed a sum of Rs.10,00,000/- for urgent business expenses and promised to repay within one month. For the amount borrowed and in discharge of the said liability, the second respondent signed the cheque in presence of third respondent and the cheque dated 05.04.2016 drawn on Axis Bank, Mettunasuvampalayam Branch handed over to the appellant. After informing the respondents, the appellant deposited the cheque on 05.04.2016 in his banker’s account, which was returned on 11.04.2016 for the reason ‘Funds Insufficient’. Immediately the appellant contacted the respondents and demanded repayment of borrowed amount of Rs.10,00,000/-. Since the respondents gave evasive reply, not making any repayment, the appellant issued statutory notice on 07.05.2016. The respondents received statutory notice on 12.05.2016, but neither paid the cheque amount nor sent any reply. Thereafter, complaint filed.

3. During trial, the appellant/complainant examined himself as PW1 and marked Exs.P1 to P4. The respondents/accused neither examined any witness nor marked any documents. On conclusion of trial, the trial Court finding that the respondents probabilised their defence, dismissed the complaint, discharging the respondents, against which, the present appeal filed.

4. The learned counsel for the appellant submitted that the trial Court failed to consider that in this case neither the cheque nor the signature in the cheque disputed. The respondents admitted the relationship but took a prevaricating stand in his reply notice and during trial. The reply notice dated 13.07.2016 not filed along with the complaint, since it was sent after 15 days time period, as stipulated in the notice/Ex.P3 and much after the complaint filed before the trial Court. The trial Court in its judgment in paragraph 16 recorded that the complaint filed on 01.06.2016. In such circumstances, expecting reply notice dated 13.07.2016 to be filed along with the complaint and finding it as suppression would not be proper.

5. He further submitted that in the reply notice the stand taken by the respondents is that the appellant and his wife applied for a loan from a Bank and a joint tenancy agreement entered between the appellant and the respondents to show that appellant’s wife was doing business in the respondents’ premises, using this document, loan applied to the bank, and appellant used to visit the respondents’ business place frequently. Whenever the second respondent goes out of station, he used to sign and leave two or three cheque leaves for the usage of third respondent. Thus, he had left two signed cheques at the work place, which came in possession of the appellant and the appellant filled up the amount of Rs.10,00,000/- and projected a false case is the defence taken. In such circumstances, it is to be seen Section 118 and 139 of N.I. Act comes into play, during trial, a contra defence taken as though the appellant threatened the respondents and respondents lodged a complaint to the Andhiyur Police