JUDGMENT

This is an appeal against acquittal filed by the appellant/complainant in a private complaint alleging an offence under Section 138 of the Negotiable Instruments Act, 1881.

2. The gist of the case of the petitioner/complainant is that in respect of a property belonging to a third person, the respondent/accused promised that he will get a Power of Attorney from the original owner and then he will sell the property to the appellant/complainant. An agreement of sale was entered into vide Ex.P-6 and the appellant/complainant paid an advance amount of Rs.5,00,000/- towards the sale consideration and the said amount was transferred to the account of the respondent/accused by R.T.G.S transfer. In repayment thereof, the subject matter cheque was issued, but, however, dishonoured and hence the case.

3. The appellant/complainant, to bring home the offence, examined himself as P.W.1 and Exs.P-1 to P-7 were marked. On behalf of the defence, no evidence was let in and the Trial Court, therefore, after considering the evidence on record, found the respondent/accused guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881 and imposed the punishment of one year Simple Imprisonment and also ordered to pay the cheque amount of Rs.5,50,000/- as compensation to the appellant/complainant and in default, to undergo three months Simple Imprisonment.

4. Aggrieved by the same, the respondent/accused filed Crl.A.No.170 of 2018 and by a judgment, dated 08.04.2019 by the learned III Additional Sessions Judge, Salem acquitted the respondent/accused. The reasons for acquittal are contained in paragraph No.14 of the said judgment. The learned Appellate Judge found that the conduct of the appellant/complainant in entering into the agreement without even properly seeing the encumbrance or the document is unreasonable. The learned Appellate Judge found that the agreement is unregistered and therefore is invalid. The learned Appellate Judge further finds that the appellant/complainant did not produce the proof for transfer of R.T.G.S amount before the Trial Court.

5. Heard Mr.M.Devaraj, learned Counsel for the appellant/complainant and Ms.D.Jeevidha, learned Counsel appearing for the respondent/accused and perused the material records of the case. 6. At the outset, I am unable to subscribe to any of the three findings of the Appellate Court as a possible view. In this case, it is the agreed case of the defence as well as the appellant/complainant that Ex.P-6 has been executed and the said sale agreement has been marked. In that view of the matter, here is a case on question of returning advanced amount and not a case of specific performance where the conduct of the parties as to whether they had looked into the encumbrance and the original deeds etc., can be gone into and therefore, the only question to be decided was whether the cheque was issued in respect of legally enforceable liability and whether the respondent/accused has rebutted the said presumption under Section 139 of the Negotiable Instruments Act. In this case, the appellant/complainant has clearly got into the box and asserted the said sum of Rs.5,00,000/- was transferred by R.T.G.S to the respondent/accused and even during the cross-examination, the said statement is not challenged. Therefore, once the signature in the said cheque was admitted and the cheque being produced, the further onus is on the respondent/accused to disprove that the amount was not transferred through R.T.G.S and therefore, the said findings of the lower Appellate Court is erroneous in law inasmuch as it shifts burden on the appellant/complainant when he has presumption under Section 139 of the Negotiable Instruments Act, 1881.

7. This apart, the finding that the agreement is an unregistered agreement and therefore, it is invalid and is also unsustainable because firstly, the said legal position itself is incorrect and secondly, in this case, the question is whether the returned advanced amoun