Advocates:
['M/S T R RAVI', '', 'T R SIVAKUMARNATH', 'NOTICE SENT SERVICE AWAITED', '', 'PRIVATE NOTICE', 'PROOF NOT FILED', 'AFFIDAVIT OF SERVICE FILED']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 12.02.2019

Coram::

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

Criminal Appeal No.691 of 2011

Venkatesan,

S/o.Ramachandran,

No.1, Neeli Veersamy Street,

2^nd lane, Triplicane,

Chennai-600 005.

... Appellant

/versus/

Ashok Kumar,

S/o.Subramani,

No.6, Vaikolkaran Street,

1^st Floor, Purasawakkam,

Chennai-600 007.

... Respondent

Prayer:- Criminal Appeal is filed under Section 387 of Criminal

Procedure Code, praying to set aside the judgment of the

Additional District and Sessions Judge, (FTC No.1), Chennai made

in C.A.No.138 of 2008 dated 10.12.2010 in setting aside the

judgment of the learned XIV M.M.Egmore, Chennai-8, made in

C.C.No.3742 of 2004 dated 25.03.2008 and convict the

Accused/respondent herein for the offence under Section 138 of

the Negotiable Instruments Act and sentencing him to undergo

three months simple imprisonment and to pay a compensation of

Rs.2,00,000/- (Rupees Two Lakhs only) under Section 357 of

Cr.P.C to the appellant herein.

For Appellant

: Mr.T.R.Ravi

For Respondent : No appearance

J U D G M E N T

Heard the learned Counsel for the appellant.

2. This appeal is directed against the dismissal of the

complaint under Section 138 of Negotiable Instrument Act by the

Appellate Court reversing the finding of the trial Court.

https://hcservices.ecourts.gov.in/hcservices/

3. The case of the complainant is that the respondent herein

issued cheque for Rs.2,00,000/- on 05.02.2004 to discharge his

loan liabilities. However, when it was presented for

collection, returned for want of fund. Statutory notice dated

08.02.2004 was issued to the accused. In spite of receiving the

notice, he failed to reply or to pay the cheque amount. Hence,

complaint is filed under Section 138 of N.I. Act.

4. Before the trial Court, the complainant was examined as

PW.1, the subject cheque was marked as Ex.P.1, Bank Return Memo

(Ex.P.2), Statutory notice caused by the complainant (Ex.P.3)

and the postal acknowledgement card indicating the receipt of

the notice (Ex.P.4) were relied by the complainant in support of

his complaint.

5. On the side of the prosecution, 2 witnesses were examined

and 2 documents were marked.

6. The trial Court has held that the accused and the

complainant are known to each other. The signed cheque was

issued by the accused not disputed by him. Therefore, the

presumption under Section 138 and 139 of N.I Act has to be drawn

against him. To rebut the presumption the accused has examined

2 witnesses and marked 2 Exhibits. DW.1 is none other than the

sister of the accused. DW.2 is the Bank Manager of the

complainant Bank. Through, DW.1 the accused able to establish

the fact that DW.1 and the accused were partners in a business

concern. The defence taken by the accused that the subject

cheque was not issued by him to discharge his loan of

Rs.20,000/- was not believed and accepted by the trial Court.

As a result, the trial Court found the accused guilt and

sentenced him to undergo 3 months S.I and pay a sum of

Rs.2,00,000/- as compensation in view of fine.

7. In the Appeal preferred by the accused, the Appellate

Court on re-appreciation of the evidence has allowed the appeal,

on the ground that the complainant has not proved his source of

income to advance loan of Rs.2,00,000/-. The signature found in

the cheque and the other document differs to doubt, whether the

cheque was given voluntarily to discharge any legally

enforceable debt. The signature and writing in the cheque was

in 2 different colours, so using 2 different inks one to sign

and another to fill up the cheque has been taken serious note by

the Lower Appellate Court to disbelieve the case of the

complainant that subject cheque was issued to discharge the loan

amount of Rs.2,00,000/-. Also the Appellate Court has observed

that th