The foundational facts required to draw statutory presumption under Section 139 of the Negotiable Instruments Act, 1881 must be proved with evidence, and the presumption is rebuttable.

JUDGMENT

(Prayer: Criminal Appeal has been filed under Section 378 of Cr.P.C., praying to set aside the order of the I Additional District and Sessions Judge, Tiruvallur dated 18.11.2019 in Crl.A.No.40 of 2018 and restore the order of conviction and sentence passed by the Judicial Magistrate, Fast Track Court (Magistrate Level) Ambattur dated 12.07.2017 in Summary Trial Case No.12 of 2016.)

1. The private complaint filed under Section 138 of the Negotiable Instruments Act, 1881 alleging that from the complainant, the accused used to borrow upto Rs.50,000/- regularly and repay it back with 24% interest. Thereby, the accused gained confidence and the total borrowing on several occasions in the year 2008 reached Rs.9,80,000/-. The accused then stopped repaying. After much pursuation to discharge the loan, in the month of April 2009, he gave the post dated cheque bearing No:342942 for Rs.9,80,000/- drawn on Axis Bank, Anna Salai Branch, Chennai-2. The said cheque dated 20/05/2009 was presented for collection, but returned on 18/06/2009 with the endorsement “Account Frozen”. The complainant caused statutory notice through his counsel calling upon the accused to pay the cheque amount or will be facing prosecution under Section138 of the Negotiable Instruments Act,1881. The accused received the notice on 22/06/2009 but did not reply.

2. The private complaint taken on file by the Judicial Magistrate, Ambattur. Later, on constitution of Fast Track Court, it was transferred to Fast Track Court, Ambattur and renumbered as S.T.C.No:12/2016. Before the trial Court, the complainant was examined as PW-1. The cheque, return memo, copy of the statutory notice and the acknowledgment card were marked as Ex.P-1 to Ex.P-4. On behalf of the accused, no ocular or documentary evidence filed. However, in the cross examination of PW-1, the accused denied the liability and projected a defence that the cheque was given to the brother of the complainant as security in exchange of the credit card of the complainant brother. After the demise of his brother, the complainant had misused the cheque by filling it for Rs 9,80,000/-. Further the cheque was not honoured because the account was frozen. Therefore, Section 138 of the Negotiable Instruments Act, 1881 will not get attracted.

3. The trial Court held the accused having admitted the issuance of the cheque, failed to probablize his defence through evidence. The suggestions and admissions in the cross examination of PW-1 does not satisfy the requirement of a rebuttal to the statutory presumption. The reason why his account was freezed was not explained by the accused. Taking note of the fact that the accused failed to give reply to the statutory notice, he did not adduce evidence to substantiate the defence that the cheque was issued as security to the brother of the complainant in lieu of using the credit card of his brother. Hence, held the accused guilty of offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo 7 months SI and to pay compensation of Rs.9,80,000/- being the cheque amount within one month in default one month SI.

4. On appeal by the accused, the I Additional District and Sessions Judge, Tiruvallur in Crl.A.No.40/2018 vide, order dated 18th November 2019 reversed the trial Court judgment and set aside the conviction and sentence. The appellate Court observed that the complaint is vague about the payment of money to the accused. No details about the dates and amount advanced to the accused during the year 2008, which fall overdue and payable. The complaint which lacks material particulars and bereft of details besides absence of proof of the foundational facts, is liable to be dismissed.

5. Being aggrieved, this Criminal Appeal is filed by the complainant. The learned Senior Counsel appearing for the appellant/complainant argued primarily on the ground that, to sustain a complaint under Section 138 of the Negotiable Instruments Act, 1881, the proof of issuan