JUDGMENT :

M. Nirmal Kumar, J.

The appellant as complainant filed a private complaint in C.C.No.327 of 2000 for offence under Section 138 of the Negotiable Instruments Act against the respondents. The trial Court, by judgment dated 09.12.2009, dismissed the complaint and acquitted the respondents, against which, the present appeal is filed.

2.The complainant Tamilnadu Industrial Investment Corporation Limited (TIIC) is a public limited company. One D.Devarajan, Loan Administrative Officer, Dharmapuri Branch was authorised to file a complaint, by a Board Resolution of Directors of the Corporation dated 26.11.1978. The case is that the first respondent M/s.Kamadenu Motel is a Proprietory concern situated at Salem-Hosur Road, Dharmapuri. The second respondent is its Proprietorix. The respondents applied short term loan for working capital for running the hotel and the loan sanctioned to the respondents to the tune of Rs.19 lakhs on 27.03.1997 and an amount of Rs.12,42,000/- disbursed to respondents on 20.06.1997, 10.11.1997, 16.12.1997 and 08.12.1998 at Dharmapuri. The loan documents executed by respondents on 29.04.1997 and respondents issued post-dated cheque bearing No.271684 dated 01.12.1999 towards the discharge of loan liability for Rs.15,64,376/- drawn on State Bank of India (SBI), Dharmapuri Branch. The cheque was presented by the appellant in their bank, namely, Canara Bank, Dharmapuri Branch on 24.12.1999 and cheque got dishonoured, returned for the reason ‘Funds Insufficient’ by a bank memo dated 24.12.1999, received by the appellant on 26.12.1999. On the same day, the appellant sent Urgent Attention Notice followed by a statutory notice on 31.12.1999. The notice received by the respondents on 04.01.2000, thereafter the respondents neither paid the cheque amount nor sent any reply. Hence, the complaint filed.

3.During trial, the complainant examined himself as PW1, Branch Manager of SBI, Dharmapuri Branch as PW2 and Officer of Canara Bank, Dharmapuri Branch as PW3 and through them Exs.P1 to P7 marked. On the side of the defence, DW1 examined, marked Exs.D1 to D9. On conclusion of trial, the trial Court dismissed the complaint, discharging the respondents from the case.

4.The contention of the learned counsel for appellant is that the trial Court on a wrong appreciation of facts and misreading the evidence of witnesses, dismissed the complaint. In this case, DW1, husband of second respondent admits that cheque/Ex.P1 was given by his wife in repayment of loan debts, not denied the cheque and the signature, but takes a defence that along with the cheque gave a letter requesting not to deposit the cheque immediately. The learned counsel further submitted that PW1-complainant deposed in his evidence, the loan sought by the respondents, processing of loan papers, thereafter granting loan and releasing the loan amount. Later, it was found that the loan amount not utilised for the purpose for which it was granted and the amount diverted. When the respondents were called to pay back the loan amount, they neither paid the principal amount nor the interest. Hence, attachment proceedings initiated, at that time cheque/Ex.P1 issued on the promise that cheque would be honoured, but cheque dishonoured and thereafter statutory notice issued. Even thereafter, the respondents neither paid the cheque amount nor sent any reply.

5. The learned counsel further submitted that for the first time DW1 takes a stand that he handed over cheque along with a covering letter and there is some dispute with regard to the payments which was not clarified. The trial Court had gone on technicality and found that statutory notice/Ex.P5 taken to the respondents’ hotel address at Salem-Hosur Road, Dharmapuri and a copy sent to the residential address at Appavoo Nagar, Dharmapuri District. The copy of the notice sent to the residential address, received by the respondents on 01.01.2000 and the notice sent to the hotel address received on 04.01.2000, hence, the dat