JUDGMENT

The appellant is the complainant and the respondent is the accused.

The appellant/complainant filed a private complaint under Section 200 Cr.P.C. for the offence under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate, Fast Track Court (Magisterial Level), Thiruvannamalai, and the learned Magistrate taken cognizance of the complaint in C.C.No.158 of 2017.

2 Case of the appellant/complainant is that the complainant is an agriculturist and doing real estate business also. The accused is a retired Teacher, who worked as a Head Master in Adayur Village for about 5 years and well known to the complainant, utilizing the same the accused demanded money to settle his urgent loan availed for his son and daughter's marriage. Based on the assurance given by the accused, the complainant advanced a loan for a sum of Rs.11,25,000/- and accused has also agreed to repay the loan within six months and also to pay interest at the rate of 24% p.a. and issued a post dated cheque dated 03.07.2009 bearing No.114970 drawn on ICICI Bank, Tiruvannamalai Branch for Rs.1,25,000/- and also a cheque dated 10.07.2009 bearing No.039038 drawn on ICICI Bank, Tiruvannamalai Branch for Rs.10,00,000/-. The accused assured the complainant that during first week of July, 2009 a sum of Rs.1,25,000/- will be available in his Bank Account and during the second week of July 2009 a sum of Rs.10,00,000/- will be available in his Bank Account. Thereafter on

17.06.2009, the accused again received a sum of Rs.2,50,000/- from the complainant by executing demand pro-note agreeing to repay the same with interest at the rate of 12% p.m. and assured to repay the amount as and when demanded by the complainant. On 03.07.2009, when the complainant presented the cheque bearing No.114970 for collection as advised by the accused, the same was returned with an endorsement “funds insufficient” through memo dated 10.07.2009. Further on the same day the complainant presented the another cheque bearing No.039038 and same was also returned on 21.07.2009 as “funds insufficient”. Therefore the complainant issued a legal notice on 21.07.2009 demanding repayment of the loan amount and the accused has also received the same on 24.07.2009, but, neither he repaid the loan, nor sent any reply and hence the complaint. 3 In order to substantiate the complaint, P.Ws.1 and 2 were examined and 8 documents were marked as Exs.P1 to P8. On the side of the accused, no one was examined and one document was marked as R.W.1. After trial, the learned Magistrate dismissed the complaint and acquitted the respondent.

4 Aggrieved over the judgment of acquittal, the complainant has filed the present appeal before this Court.

5 The learned counsel appearing for the appellant/complainant would submit that the respondent/accused borrowed money and gave cheuqes towards discharge of the debt and when the complainant presented the same for collection as advised by the respondent/accused, it were returned and hence the complainant caused legal notice, but in spite of receipt of the notice, the respondent/accused neither repaid the amount nor sent any reply. Further, the respondent/accused admitted the signature and execution of the cheque and also borrowal of Rs.1.25 lakhs. Once signature and execution is admitted by the accused, initial burden has been proved by the complainant and then statutory presumption under Section 139 of NI Act would arise and it is for the accused to rebut the presumption in the manner known to law, whereas, in this case, the respondent/accused has not rebutted the same in the manner known to law.

6 The learned counsel would further submit that the trial Court failed to appreciate the legal as well as the factual aspects in the right perspective and dismissed the complaint. The learned counsel, to support his contention has placed reliance on the decisions of the Hon'ble Supreme Court in the following cases:

1. Criminal Appeal No.508 of 2019; Rohitbhal Jivanlal