IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.04.2024 CORAM THE HONOURABLE MR. JUSTICE M.DHANDAPANI Crl.M.P.No.1007 of 2024 in Crl.A.SR.No.2470 of 2024 Muthukumar .. Petitioner/Appellant Vs.

Bhaskaran .. Respondent/Respondent Prayer in Crl.M.P.No.1007 of 2024: Criminal Miscellaneous Petition filed under Section 5 of the Limitation Act, to condone the delay of 100 days in filing the above Criminal Appeal against the Judgment dated 13.07.2023 passed in STC.No.302/2018 on the file of Judicial Magistrate (Fast Track)

Court, Tiruppur.

Prayer in Crl.A.SR.No.2470 of 2024: Criminal Appeal filed under Section 378(4) of Criminal Procedure Code, against the Judgment dated 13.07.2023 passed in S.T.C.No.302 of 2018 on the file of the Judicial Magistrate (Fast Track) Court, Tiruppur, acquitting the Respondent herein from the offence under Section 138 of Negotiable Instruments Act.

For Petitioner : M/s.S.Sriram For respondent : No Appearance

ORDER

This Criminal Miscellaneous Petition has been filed seeking to condone the delay of 100 days in filing the above Criminal Appeal against the Judgment dated 13.07.2023 passed in S.T.C.No.302/2018 on the file of the Judicial Magistrate (Fast Track) Court, Tiruppur.

2. It is the case of the petitioner that towards discharge of a part of the liabilities due and payable by the accused to the complainant, the accused had issued the cheque to the complainant bearing Cheque No.003387on 27.06.2018 for a sum of Rs.90,000/- drawn on Bank of India, Ganapathipalayam Branch, Tiruppur in favour of the complainant. As per the request made by the accused, the complainant has presented the above said cheque with Karur Vysya Bank, Muthanampalayam Branch, however, the same was returned for the reason "Exceeds Arrangement" which was intimated to the complainant through bankers memorandum dated 29.06.2018.Since the respondent has deliberately failed to honour the cheque, the petitioner caused a legal notice dated 07.07.2018 to the accused calling upon him to pay the cheque amount to the respondent within 15 days from the date of receipt of a notice contemplated under Section 138 of Negotiable Instruments Actand the respondent while acknowledging the receipt of the same on 10.07.2011, has neither sent a reply nor paid the cheque amount. Therefore, left with no other alternative, the complaint was filed by the appellant for an offence u/s 138 of the Act before the trial court in S.T.C.No.302 of 2018 wherein the trial court had acquitted the respondent. Challenging the order of acquittal, the petitioner has filed the above Criminal Appeal along with the petition seeking condonation of delay.

3. Learned counsel appearing for the petitioner submitted thatthe cheque was issued by the respondent, which stood dishonoured and the respondent has not disputed his signature in the cheque, which clearly shows that there is a legally enforceable debt, which has not been discharged by the respondent. However, all those facts have not been properly considered by the court below while passing the impugned order acquitting the respondent and, therefore, interference is warranted with the findings recorded by the court below.

4. On the side of the petitioner, the petitioner examined himself as P.W.1 and marked Exs.P-1 to P-9. No witnesses were examined on the side of the respondent and Ex.R-1 was marked. The trial court, appreciating the materials available on record, held that the petitioner has not established that there was a legally enforceable debt for which the cheque was issued, which was dishonoured and also failed to prove that the cheque was issued by the respondent for discharging a legally enforceable debt and, accordingly, acquitted the respondent, aggrieved by which the present appeal has been filed.

5. Though notice was issued to the respondent and his name printed in the causelist, when the matter is taken up for hearing, none appeared on behalf of the respondent today. In view of the fact that the accused had been acquitted