The court upheld the acquittal as the complainant failed to prove the loan's existence or that the cheque was issued for legitimate debt, emphasizing the rebuttable nature of presumptions under the Negotiable Instruments Act.

JUDGMENT :

K.MURALI SHANKAR, J.

The Criminal Appeal is directed against the judgment made in C.C.No.91 of 2015 dated 28.02.2018 on the file of the Fast Track Court (Judicial Magistrate Level), Palani, 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 is a friend of the complainant for more than 10 years. The accused approached the complainant and requested for a loan of Rs.11,25,000/- for his urgent family expenses and for business development and also to clear the sundry debts during the last week of February-2015 and the complainant advanced loan of Rs.11,25,000/- on 01.03.2015. The accused having received the loan amount gave a cheque dated 05.04.2015 for Rs. 11,25,000/- drawn on State Bank of India, Coimbatore Ganapathy 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 11.04.2015 through his banker IDBI Bank, Palani Branch but the same was returned dishonored as funds insufficient. The complainant immediately contacted the accused and informed about the dishonor of the cheque and the accused expressing his regrets requested the complainant to present the cheque again on 16.06.2015 promising that the cheque would be honored. Accordingly, the complainant presented the cheque for collection on 16.06.2015 through IDBI Bank, Palani Branch but the same was dishonored again as funds insufficient through banker's memo dated 23.06.2015. The complainant sent a legal notice dated 17.07.2015 to the accused demanding him to pay the amount covered by the cheque. The accused having received the notice on 20.07.2015 sent a reply notice dated 31.07.2015 with false and untenable allegations. Since the accused has not paid the cheque amount within the stipulated period, 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, 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 C.C.No.91 of 2015 for the offence under Section 138 of the NI Act and ordered for issuance of summons to the accused. After appearance of the accused, copies of records were furnished to him under Section 207 Cr.P.C. on free of costs. When the accused was questioned about the offence alleged against him, he denied the commission of offence and pleaded not guilty.

6. During trial, the complainant examined himself as P.W.1 and exhibited 27 documents as Ex.P.1 to Ex.P.27.

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 as against him and the accused denied the same as false and further stated that a false case has been foisted against him.

8. The accused examined himself as D.W.3 and 2 other witnesses Tmt.Subashini and Thiru.Jeevan Mohandas as D.W.1 and D.W.2 respectively and exhibited 3 documents as Ex.D.1 to Ex.D.3.

9. The learned Judicial Magistrate, upon considering the evidence both oral