The failure of the accused to respond to a statutory notice under the Negotiable Instruments Act supports the presumption of debt and liability, which the accused must rebut with credible evidence.

JUDGMENT :

K. Murali Shankar, J.

The Criminal Appeal is directed against the judgment made in S.T.C.No.1427 of 2022 dated 27.12.2023 on the file of the Court of Judicial Magistrate, Tiruchendur, in acquitting the respondent / accused for the offence under Section 138 of the Negotiable Instruments (hereinafter referred as 'NI') Act.

2. The appellant, who is the complainant, filed a complaint under Section 200 Cr.P.C. against the respondent / accused for the alleged offence under Section 138 r/w 142 of the NI Act.

3. For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status / ranking in the trial Court.

4. The case of the complainant is that the accused having acquaintance with the complainant borrowed Rs.4,00,000/- on 24.08.2020, R.2,00,000/- on 11.01.2021, Rs.50,000/- on 01.07.2021, Rs.2,00,000/- on 16.09.2021 and Rs.1,50,000/- on 02.10.2021, totalling Rs.10,00,000/- for his urgent expenses and to purchase lorry agreeing to return the amount within two months. The complainant demanded the accused to return the amount and the accused issued a post-dated cheque dated 02.09.2022 for Rs.10,00,000/- drawn on Canara Bank, Attur Branch and requested the complainant to present the cheque and encash the same. Believing the words of the accused, the complainant presented the cheque for collection on 02.09.2022 through his banker Tamilnad Mercantile Bank, Attur Branch but the cheque was returned dishonored as funds insufficient. Hence, the complainant sent a legal notice dated 21.09.2022 to the accused demanding him to pay the amount covered by the cheque. The accused having received the notice on 24.09.2022 neither sent any reply nor paid the cheque amount. Therefore, the complainant was constrained to file the above complaint for the offence under Section 138 r/w 142 of the NI Act.

5. The learned Judicial Magistrate, Tiruchendur, upon receiving the complaint, recorded the sworn statement of the complainant and on perusing the records, upon satisfied that there existed a prima facie case took the case on file in S.T.C.No.1427 of 2022 for the offence under Section 138 of the NI Act. The Court sent the copies of complaint and records along with summons. After appearance of the accused, the accused was questioned about the offence alleged against him and he denied the commission of offence and pleaded not guilty.

6. During trial, the complainant examined himself as P.W.1 and exhibited 5 documents as Ex.P.1 to Ex.P.5.

7. After closure of the complainant's side evidence, the accused was examined under Section 313(1)(b) Cr.P.C. with regard to the incriminating aspects found against him and he denied the same as false. The accused stated that the accused took a loan of Rs.8,500/- on 01.07.2021 from the complainant, that he had taken loans earlier and repaid them, that the accused did not take loans as alleged by the complainant, that the accused gave six cheques when borrowing Rs.8,500/-, that the signature found in Ex.P.1 (cheque) is his signature and that the accused requested the complainant to hold the cheque due to insufficient funds in the bank account and agreed to pay in installments but the complainant presented the cheque anyway. The accused adduced neither oral nor documentary evidence.

8. The learned Judicial Magistrate, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, passed the impugned judgment dated 27.12.2023 holding that the complainant has not proved the offence under Section 138 of the NI Act as against the accused beyond reasonable doubt, acquitted him under Section 255(1) Cr.P.C. Aggrieved by the impugned judgment of acquittal, the complainant has filed the present appeal

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