JUDGMENT

(The case has been heard through Video Conference) Unsuccessful private complainant is the appellant herein.

2.The appellant herein/private complainant has filed a private complaint in C.C.No.11205 of 2010, before the learned Judicial Magistrate No.II, Fast Track Court, Chennai, for the offence under Sections 138 & 142 of the Negotiable Instruments Act, on the basis of Ex.P1/cheque.

3.It is alleged in the complaint that the respondent herein/accused is a good friend of complainant, who was introduced through a friend viz., Ganesan two years before. The accused based on their friendship, during the year December 2009 requested him to advance an amount of Rs.25,00,000/- as he had some business as well as family commitments and further stating that he will return the same within a period of one month time. Accordingly, the complainant advanced a sum of Rs.25,00,000/- to the accused and the accused had failed to return the said amount. Thereafter, on repeated request the accused had issued Ex.P1/cheque for a sum of Rs.25,00,000/-, dated 10.02.2010 drawn on UTI Bank, Karur branch bearing Cheque No.024814 and it was dis-honoured and after issuing the notice, the complainant has filed complaint against the accused.

4.The suggestive case of the respondent/accused is that the complainant is a stranger and the complainant has no source of income to lend such a huge amount of Rs.25,00,000/- in the year 2010. Further, it is stated that the complainant has given 10 unfilled signed cheques to his brother viz., Chellaperumal. One Ganeshan, who is the friend of the Chellaperumal, has taken some of the unfilled signed cheques from Chellaperumal's office and he set up the complainant to file the complaint. The said cheques were issued from UTI Bank and it was subsequently amalgamated with Axis Bank. Old cheque of the year 2007 was fabricated in this case.

5.After the trial, the learned Judicial Magistrate has convicted the respondent/accused for the offence under Sections 138 & 142 Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and to pay the cheque amount as fine, in default to under go one month simple imprisonment. As against the order of conviction, the respondent/accused has preferred an appeal in Crl.A.No.34 of 2014, before the VII Additional City Civil Court, Chennai. The learned Judge has allowed the said appeal by an order dated 28.08.2014 and set aside the conviction and sentence passed by the trial Courst and acquitted the respondent/accused. As against the said order of acquittal, the complainant has preferred the present appeal before this Court.

6.Heard both the counsel appearing for the parties and perused the materials placed on record.

7.The learned counsel for the appellant herein/complainant would contend that the source of income of the respondent/accused has been duly explained by P.W.1 and there was no reply notice sent by the respondent/ accused and in the absence of any cogent evidence, the Lower Appellate Court has committed an error in reversing the order of conviction passed by the trial Court and acquitting the respondent/accused. The learned counsel also relied upon a decision of the Hon'ble Supreme Court, reported in CDJ 2019 SC

1545 – [Rahul Sudhakar Anantwar Vs. Shivkumar Kanhiyalal Shrivastav].

8.From the evidence of PW1 and Ex.P1/Cheque, Ex.P2/return Memo, Ex.P3/statutory notice, Ex.P4/acknowledgment card for Ex.P3, this Court finds that in the absence of any dispute as to the signature and the cheque being issued from the account of the respondent/accused, the appellant/private complainant is entitled for presumption under Section 139 of the Negotiable Instruments Act. Now, it is the turn of the respondent/accused to rebut the same.

9.The standard of the proof that is required to probablise the suggestive case of the accused in a case filed under Section 138 of Negotiable Instruments Act is that the presumption under Section 139 of Negotiable Instruments is as that of statu