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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.12.2017

CORAM :

THE HON'BLE MRS.JUSTICE R.HEMALATHA

Crl. A. No. 637 of 2007

V. Sridhar

..

Appellant

/Vs/

A.Ganesan

..

Respondent

This is a criminal Appeal filed under Section 378 of the Code of

Criminal Procedure as against the Order of acquittal dated 26.06.2007

passed in C.C.No.450 of 2006 on the file of the learned Judicial

Magistrate-II, Erode.

For Appellant

:

M/s.N.Manokaran

For Respondent

:

M/s.R.N.Amarnath

JUDGMENT

The appellant/complainant had filed a private complaint

U/s 200 of the Code of Criminal Procedure against the accused

A.Ganesan S/o.Angamuthu before the learned Judicial Magistrate-II,

Erode for the alleged offences punishable U/s 138 and 142 of

Negotiable Instruments Act.

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2. The respondent/accused borrowed a sum of Rs.3 lakhs

(Rupees Three Lakhs Only) from the appellant/complainant and

promised to repay the same with interest at 12% p.a., within one

month. He also issued a post dated cheque bearing no.398044 drawn

on Canara Bank, Sakthi Nagar Branch, Erode. The said cheque was

dated 07.05.2004. The appellant/complainant presented the cheque

(Ex.P.1) through his bankers namely U.T.I Bank, Erode for encashment

and the same was returned unpaid for the reason “insufficient funds”

as evidenced by the cheque return memo (Ex.P.2). Thereafter the

appellant/complainant issued a statutory notice dated 15.05.2004 to

the respondent/accused, a copy of which is marked as Ex.P.3. The

said notice was returned as ''not claimed'' as evidenced by the

returned postal cover (Ex.P.4). The appellant/complainant therefore

filed a complaint in C.C.No.450/2006 before the learned Judicial

Magistrate-II, Erode.

3. After full contest, the learned Judicial Magistrate-II,

Erode dismissed the complaint and acquitted the respondent/accused

U/s 255(1) of the Code of Criminal Procedure. Aggrieved by which the

appellant/complainant has filed this appeal U/s 378 of the Code of

Criminal Procedure, on the following grounds:

1. When the execution of the cheque has not been denied by the

respondent/accused, the trial Court went wrong in accepting the

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case of the respondent/accused especially when the

respondent/accused has not rebutted the presumption U/s 118

and 139 of Negotiable Instruments Act.

2. The trial Court has committed an error in disbelieving the case of

the appellant/complainant.

4. The point for consideration is whether the Order of

acquittal passed by the learned Judicial Magistrate-II, Erode is liable to

be setaside?.

5. In the trial Court the appellant/complainant examined

himself and marked Ex.P.1 to Ex.P.4. The respondent examined three

witnesses and marked Ex.R.1 to Ex.R.4.

6. A similar case was filed before the learned Judicial

Magistrate-II, Erode against the same accused by one N. Senthilkumar

in C.C.No.467/2004 for an offence punishable U/s 138 of the

Negotiable Instruments Act. The said complaint was also dismissed by

the learned Judicial Magistrate-II, Erode and aggrieved by the said

Judgment the appellant/complainant has filed an appeal in C.A.No.636

of 2007 before this Court. In the instant case as well as in

C.C.No.467/2004, the respondent/accused had issued two cheques

bearing no.398044 dated 04.04.2004 and 398045 dated 03.04.2004.

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Both the cheques got presented on 07.05.2004.

7. The basis for the conclusion arrived at by the learned

Judicial Magistrate-II, Erode is the contention of the

respondent/accused that there was no such liability towards the

appellant/complainant and that the cheque (Ex.P.1) was indeed given

to one Mr.Muthusamy for consideration of Rs.40,000/-(Rupees Forty

Thousand Only) received from him. The learned Judicial Magistrat