The onus of proving a cheque's liability lies with the defence when a specific stand is taken regarding its issuance.

JUDGMENT :

M. Nirmal Kumar, J.

The appellant as complainant filed a private complaint for offence under Section 138 of Negotiable Instruments Act, 1881 in STC.No.99 of 2016 before the learned Judicial Magistrate, Fast Track Court, Hosur (trial Court) against the respondent. The trial Court by judgment dated 30.01.2020 convicted the respondent for offence under Section 138 of Negotiable Instruments Act, 1881 and sentenced to undergo one year Simple Imprisonment and to pay Rs.3,67,000/- as compensation to the appellant. Challenging the same, the respondent preferred an appeal before the learned Additional District Judge, Hosur (Lower Appellate Court) in Crl.A.No.30 of 2020 and the same was allowed on 15.04.2021 setting aside the judgment of the trial Court. Against which, the present Criminal Appeal is filed by the appellant/complainant.

2.Despite service of notice to the respondent and her name printed in the cause list, there was no representation for the respondent either in person or by any counsel. Hence, this Court by order dated 12.11.2025 appointed Ms.R.Gayathri as Legal Aid Counsel for the respondent.

3.Gist of the case is that the appellant and the respondent are known to each other for the past 15 years. The respondent along with her husband approached the appellant and requested to join the chit run by them. Believing the same, the appellant joined the chit and the respondent borrowed a sum of Rs.3,67,000/- from the appellant. On 03.09.2015, the appellant issued a post dated cheque bearing No.000121 dated 03.10.2015 for Rs.3,67,000/- drawn on Karur Vysya Bank, Attibele Branch. When the appellant presented the cheque (Ex.P1) for encashment on 26.10.2015 in Central Bank of India, Mookandapalli Branch, the same returned for the reason “Insufficient Funds” on 27.10.2015. The appellant intimated the dishonour of cheque to the respondent, but the respondent did not pay the amount, on the other hand, the respondent requested the appellant to represent the cheque. Believing the same, on 02.11.2015, the appellant re-presented the cheque, but again the cheque returned for the reason “Insufficient Funds”. Thereafter, the appellant sent a legal notice on 12.11.2015 to the respondent. Despite receipt of the statutory notice, the respondent neither made any reply nor paid the cheque amount. Following the procedures, the complaint under Section 138 of Negotiable Instruments Act, 1881 filed before the trial Court.

4.During trial, the appellant examined himself as PW1 and the Bank Managers of Central Bank of India and Karur Vysya Bank examined as PW2 & PW3. Ex.P1 is the cheque dated 03.10.2015, Exs.P2 & P3 are Bank Return Memo, Ex.P4 is the statutory notice, Ex.P5 is the Postal Receipt, Ex.P6 is the Postal Acknowledgment Card, Ex.P7 is the appellant’s bank statement marked through PW2, Ex.P8 is the respondent’s bank statement marked through PW3 and Exs.P9 & P10 are the cheque return particulars. On the side of the defence, the respondent examined herself as DW1 and her relative Ms.Shilpa examined as DW2, but no document marked. On conclusion of trial, the trial Court convicted the respondent, but on appeal the lower appellate Court set aside the trial Court conviction. Against which, the present appeal is filed.

5.Learned counsel for the appellant/complainant submitted that the appellant is known to the respondent and her husband who were running an indigenous chit. The appellant was a Subscriber to the chit which was for Rs.25,000/- (Rupees twenty five thousand only) per month, for a total sum of Rs.5,00,000/- (Rupees five lakh only) over twenty months. The appellant regularly paid the subscription amount. Three months before completion of the chit, the appellant became a successful bidder. For paying the chit amount, a cheque (Ex.P1) dated 03.10.2015 for a sum of Rs.3,67,000/- issued by the respondent. When the cheque (Ex.P1) presented by the appellant on 26.10.2015 in Central Bank of India, Mookandapalli Branch, the same returned for th