JUDGMENT

This criminal appeal is directed as against the order of acquittal by a judgment dated 06.04.2017 made in Crl.A.No.141 of 2016 on the file of V Additional District and Sessions Judge at Coimbatore reversing the judgment dated 04.10.2016 made in CC.No.133 of 2013 on the file of Judicial Magistrate, Fast Track Court at Magisterial Level-II at Coimbatore.

2. The appellant is the defacto complainant and the respondent is the accused. The appellant filed complaint for the offence punishable under Section 138 of NI Act. The appellant lodged complaint alleging that on 02.08.2010, the respondent borrowed a sum of Rs.7,50,000/- from the complainant for the business purpose and executed the demand promissory note promising to repay the same to the complainant or to his order with interest @ 24% p.a., that a sum of Rs.10,50,000/- remained due and payable by the accused to the complainant as per the account, that the accused had been a chronic and systematic defaulter in repayment of the loan availed, that the accused had issued the cheque bearing No.253127 dated 02.08.2012 for a sum of Rs.10,50,000/- drawn on ICICI Bank, Coimbatore Branch towards discharge of the said liability, that when the complainant presented the cheque through their bankers M/s.Indus Ind Bank Ltd., R.S.Puram, Coimbatore for collection on 02.08.2012, the cheque was dishonoured by the accused bankers for the reason “Account Closed”, that the same had been intimated to the complainant bankers vide memo dated 04.08.2012 who in turn had intimated the complainant on 07.08.2012, that immediately the complainant had caused the legal notice to the accused on 22.08.2012 demanding the payment of the cheque amount within 15 days from the receipt thereof, that the same had been returned on 31.08.2012 as “Addressee left without instructions, so returned to sender”, that the accused had issued the cheque knowing that he had no sufficient funds in his account to honour the cheque and had issued the cheque with ulterior motive to cheat the complainant, that the complainant had issued the notice within 30 days from the date of dishonour of the cheque and filed the complaint within one month after the expiry of 15 days grace period provided in the notice for payment, that the accused is residing at No.9B, Srinagar, B.K.Pudur, Kuniamuthur Post, Coimbatore 641 008 and demand notice served on the above address.

3. On the side of the appellant, examined PW1 and marked Ex.P1 to Ex.P5. On the side of the respondent, no one was examined and no documents were marked. On perusal of oral and material evidence placed before the trial court, the trial court convicted the respondent for the offence punishable under Section 138 of NI Act and sentenced him to undergo one year simple imprisonment with fine of Rs.10,000/-. Aggrieved by the same, the respondent filed appeal and the same was allowed and set aside the conviction imposed by the trial court, against which the present criminal appeal has been filed.

4. The learned counsel for the appellant submitted that the respondent had taken three grounds as his defence before the trial court: (i) The account already closed and as such, he is not liable to be punished for the offence under Section 138 of NI Act; (ii) There was error in the legal notice with regards to mentioning of address as 98 instead of 9B; (iii) He borrowed money from one Thiyagu and no consideration was passed for the issuance of cheque. The said cheque was handed over as security to the said Thiyagu and the same was misused by the appellant herein. He further submitted that the first appellate court erred in holding that the appellant failed to examine any other witnesses to prove the case except himself as PW1. The returned cover was marked as Ex.P5.

Accordingly, intimation was duly delivered to the respondent in respect of the notice issued by the appellant herein though the appellant wrongly mentioned the address as 98 instead of 9B with regards to door number of the res