O R D E R

Challenging the order passed by the III Additional District and Sessions Judge, Kallakurichi in Crl.A.No.61 of 2018, dated 29.03.2019 by setting aside the conviction and sentenced passed by the learned Judicial Magistrate, FTC Court, Kallaurichi in C.C.No.182 of 2016, dated

26.07.2018, the present Criminal Appeal has been filed.

2. The case of the prosecution is that in the month of January 2014, the respondent/accused had borrowed a sum of Rs.45 lakhs for his urgent family expenses from the petitioner/complainant. Though the petitioner/complainant asked to repay the said amount, the respondent/accused failed to repay the same. Thereafter, the respondent/accused gave a cheque bearing No.446833, drawn on State Bank of India, Chinnasalem Branch in favour of the petitioner/complainant. When the cheque was presented for collection in the Central Bank of India, Kallakurichi Branch, it was returned with an endorsement "insufficient funds." Thereafter, on 03.06.2015, the petitioner/complainant issued a legal notice to the respondent, in turn, he sent a reply dated 06.06.2015. Since the respondent/accused gave a cheque to the petitioner without having sufficient funds in his bank account, only with an intention to cheat the petitioner/complainant, a complaint under section 138 of Negotiable Instrument Act has been given.

3. After recording the sworn statement of the complainant and after perusal of the documents, the Trial Court taken cognizance of the offence under section 138 of N.I.Act and on questioning, the accused denied the same as false. In order to prove the case of complainant, he examined himself as P.W.1 and Ex.P.1 to Ex.P.7 were marked.

4. When the incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. To prove his case, he examined himself as RW1 and marked Ex.R1 to Ex.R9.

5. Having considered all the materials, the Trial Court convicted the accused under Section 138 and 142 and sentenced to under go simple imprisonment for one year and to pay a fine of Rs.45 lakhs as compensation, in default, to under go simple imprisonment for 3 months. Challenging the above conviction and sentence, the accused preferred an appeal before the lower appellate Court in Crl.A.No.61 of 2018 and the lower Appellate Court, by order dated 29.03.2019, allowed the same by setting aside the order passed by the Trial Court. Challenging the same, the appellant/complainant is before this Court with this appeal.

6. The learned counsel for the appellant/complainant submitted that the appellant is the complainant and the respondent is the accused. The respondent/accused borrowed a sum of Rs.45 lakhs from the complainant in the month of January 2014. To repay the said amount, the accused gave a State Bank of India cheque bearing No.446833, dated 06.05.2015 for a sum of Rs.45 lakhs. The complainant presented the cheque for encashment, which was dishonoured by the Bank due to insufficient funds in his account. Thereafter, the complainant sent a legal notice as required by Act demanding payment of the cheque amount, but not paid by the respondent.

Thereafter, filed the complaint under Section 138 of N.I.Act.

7. Before the Trial Court, the accused took the defence that he has not borrowed the amount of Rs.45 lakhs and he has no financial capacity to pay the amount. The Trial Court, considered all the aspects and evidence and by invoking the presumption under Section 139 of NI Act, found that the accused failed to rebut the presumption under Section 118 and 139 of NI Act and found him guilty and convicted him.

8. Aggrieved by this, the accused filed an appeal in Crl.A.No.61 of

2018 on the file of the III Additional District and Session Court, Kallakurichi. The lower appellate Judge without appreciating and considering the presumption in favour of the complainant under Section 139 of Negotiable Instrument Act and without considering the evidence adduced by the complainant, materially erred in acquitting the ac