The court determined that under Sections 138 and 139 of the Negotiable Instruments Act, the presumption that a cheque was issued to discharge a debt is rebuttable, placing the burden on the accused to prove otherwise.

JUDGMENT

The Criminal Appeal is directed against the judgment made in S.T.C.No.940 of 2012 dated 18.11.2014 on the file of the Court of Judicial Magistrate No.I, Fast Track Court at Magisterial Level, Madurai, in acquitting the respondents 1 to 3 / accused 1 to 3 for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred as 'the NI Act').

2. The appellant Company, who is the complainant, filed a complaint through its duly constituted attorney, under Section 200 Cr.P.C. against the respondents / accused 1 to 4 for the offence under Section 138 r/w 142 of the NI Act.

3. For the sake of convenience and brevity, the parties herein after will be referred to as per their status / ranking in the trial Court.

4. The case of the complainant Company is as follows;

(a) The complainant Company is a Public Limited Company incorporated under the Companies Act, 1956, engaged in the business of manufacturing and marketing of Polyester products. The first accused is a partnership firm and the accused 2 to 4 are the partners of the first accused Firm, who are actively involved in the day to day affairs of the first accused Firm and are incharge of and responsible in the conduct of the business of the first accused Firm.

(b) The complainant Company and the first accused Firm entered into an agreement dated 25.04.2008 whereby the complainant Company appointed the first accused Firm as one of its del credere agent of the complainant Company from 01.04.2008 for sale of the products in India. The accused, while acting as the del credere agent of the complainant Company, collected from various customers of the complainant Company an amount of Rs.2,23,50,327.61/- payable by the said customers to the complainant Company towards the products delivered unto them, on the basis of the orders placed by the accused. The accused sent a letter dated 23.09.2008 confirming the receipt of Rs.2,23,50,327.61/- but however, they have failed and neglected to pay an amount of Rs.1,87,28,768.61/- to the complainant Company.

(c) In order to secure payment against the said amount due and payable by the accused to the complainant Company, the fourth accused on her behalf and on behalf of the other accused, has created a second charge of her landed property lying at 1, Vanamamalai Nagar, Bypass Road, Madurai-10 by way of simple mortgage as registered as document No.957/2009 with the Sub Registrar, Arasaradi, Madurai. During the month of July 2010, the accused have requested the complainant Company to release its second charge on the said property by assuring that they will repay to the complainant Company the amount due and payable by them along with interest thereon. The total amount due and payable by the accused till 30.07.2010 was mutually calculated and confirmed as Rs.2,73,29,776.61/- and accordingly, the accused have given an undertaking in writing dated 28.07.2010 to pay to the complainant Company Rs.10,00,000/- on the date of release of the second charge and to pay the remaining amount of Rs.2,63,29,776.61/- on demand. Later on, the accused have paid a sum of Rs.10,00,000/- to the complainant Company and to ensure the payment of remaining amount, they have issued a promissory note for the said amount and the complainant Company has released its second charge on the said property.

(d) In order to discharge the aforesaid legally enforceable liability, the accused issued a cheque bearing No.272076 dated 30.07.2010 for Rs.2,63,29,776.61/- drawn on the Federal Bank Limited, Madurai Branch. The complainant Company presented the cheque for collection through its banker, Axis Bank Limited, Madurai but the cheque was returned dishonored as fund