Technical errors in complaint correctable; statutory presumption under Sections 118/139 NI Act holds unless rebutted with evidence.

JUDGMENT :

M. NIRMAL KUMAR, J.

1. The respondent convicted by judgment dated 11.12.2018 in C.C.No.5846 of 2016 passed by the learned Metropolitan Magistrate, Fast Track Court-I, Egmore, Chennai (trial Court) and sentenced to undergo six months Simple Imprisonment and to pay the compensation of Rs.3,30,000/- to the appellant in default to undergo two months Simple Imprisonment. Challenging the same, the respondent preferred an appeal before the learned XX Additional Sessions Judge, Chennai (lower appellate Court) in Crl.A.No.22 of 2019 and the same was allowed on 26.10.2021 setting aside the judgment of conviction of the trial Court. Against the same, the present Criminal Appeal is filed by the appellant/complainant.

2. Gist of the case is that the appellant and the respondent known to each other for the past several years and both working in Kilpauk Medical College and Hospital, Chennai, having good acquaintance the respondent approached the appellant and availed hand loan to meet urgent binding necessities. The appellant gave hand loan to the respondent believing that the respondent owned a house property situated at Perumbakkam, Guru Devi Colony, 1^st Floor B Block No.1/909, Chennai. Subsequently, the respondent executed a promissory note (Ex.P1) on 10.11.2014 for Rs.3,30,000/- and agreed to pay interest @ 2% P.M. which is also due to the sum of Rs.85,800/-. The respondent assured to return the amount due on the promissory note (Ex.P1) and promised to repay the same on 16.01.2016. In discharge of the liability, the respondent issued a cheque dated 16.01.2016 (Ex.P2) bearing No.505630 drawn on Oriental Bank of Commerce, Kilpauk, Chennai for a sum of Rs.3,30,000/-. As per the instruction given by the respondent, the appellant deposited the said cheque for collection on 28.03.2016 in Indian Bank, Chetpet Branch, the same returned for the reason “Funds Insufficient”. Thereafter, the appellant caused statutory notice dated 30.03.2016 (Ex.P4) to the respondent, but the respondent neither paid the cheque amount nor sent any reply. Following the procedures, the complaint filed before the trial Court for offence under Section 138 of Negotiable Instruments Act, 1881. During trial, on the side of the appellant/complainant, he examined himself as PW1 and marked Exs.P1 to P6. On the side of the defence, no witness examined and no document marked. On conclusion of trial, the trial Court convicted the respondent, but the lower appellate Court set aside the trial Court conviction.

3. Learned counsel for the appellant submitted that the lower appellate Court magnified a typographical error made in the complaint referring to the promissory note (Ex.P1). In the complaint, it is mentioned that the promissory note (Ex.P1) is dated 10.11.2014 and the amount is Rs.3,30,000/-, instead of the date of promissory note as 21.11.2014 and the principal amount as Rs.3,20,200/-. This typographical error corrected by the appellant by filing additional proof affidavit on 20.06.2017 and the affidavit copy was served on the respondent on 19.03.2018. Thereafter, a petition under Section 311 Cr.P.C. filed in Crl.M.P.No.1566 of 2018 to recall the appellant to correct the typographical mistake which is purely technical. Mr.A.Manimaran, learned counsel for the respondent in the trial Court received the affidavit copy, raised no objection. Thereafter, further chief examination recorded on 19.03.2018 and the typographical mistake was explained. But the lower appellate Court not considered the same and gave a finding as though the technical error is a vital contradiction, thereby, giving benefit of doubt to the respondent.

4. He further submitted that the respondent took two contradictory stands in this cas