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TMI Blog2017 (12) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed. - Criminal Appeal No. 895 of 2005 - - - Dated:- 15-12-2017 - R. Hemalatha, J. For the Appellant : Mr. R. Marudhachalamurthy For the Respondent : Mr. B. Srinivasan JUDGMENT This is an appeal against the Order of acquittal passed by the learned Judicial Magistrate-I, Sankagiri against the accused in C.C.No.257 of 2004. 2. The brief case of the facts of the appellant/complainant is as follows: The appellant/complainant is running a business in Automobiles at Salem main road, Sankagiri. The respondent/accused is running a business in the name and style of Kavitha Labour Body Works. The accused used to buy spare parts in Automobiles from the appeallant/complainant on credit basis. Thus the respondent/accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondent/accused had admitted the execution of the cheque. (ii) The respondent/accused has failed to rebut the presumption U/s 118 and 138 of Negotiable Instruments Act. (iii) The accused had contended that the cheque was issued to one Pazhaniyappan from whom he borrowed a sum of ₹ 50,000/-. It is also contended by him that his son married the said pazhaniyappan's daughter against his wishes and therefore the said Pazhaniyappan in collusion with the present appellant/complainant had misused the cheque given by respondent/accused. Though there are no materials on record to substantiate this contention of the respondent/accused, the trial Court had acquitted the respondent/accused U/s 255(1) of the Code of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt on 18.08.2004, but did not respond either by way of repayment or reply notice. The accused on his part had contended that he knew the appellant/complainant for 10 years and that he used to purchase spare parts required for body building from the latter and was in the habit of settling the bill amount from the amount given by his customers for body building. It is also contended that there was previous enemity with one Mr.Pazhaniyappan who's daughter got married to the son of the respondent/accused against the wishes of the said Pazhaniyappan. The further contension of the respondent/accused is that he had given the subject cheque to Pazhaniyappan after taking a loan of ₹ 50,000/-from him in December 2002 and the same chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The trial Court also believed that the respondent/accused did not issue any cheque directly to the appellant/complainant. Therefore the learned Judicial Magistrate-I, Sankagiri acquitted the respondent/accused U/s 255(1) of the Code of Criminal Procedure. 8. The learned counsel for the appellant/complainant contended that the trial Court had erred in acquitting the accused by shifting the burden of proof on the appellant/complainant. It is well settled that the statutory presumption under Section 118 of Negotiable Instrument Act, 1881 has to be rebutted only by way of oral and documentary evidence on the side of the accused. It is also true that they can also rely on the inconsistent plea of the appellant/complainant. But, in the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chases. On a deeper analysis, the respondent/accused has also made contradictory statements, by which, his contention that there were no credit purchases cannot be taken for its face value. 12. Another striking feature, is the amount of cheque. The amount of cheque being on add amount i.e., ₹ 1,46,208/- lends credence to the appellant/complainant contention that there was indeed a liability to be settled by the respondent/accused. As already observed, the trial Court had completely erred in shifting the onus of proof on the appellant/complainant. The trial Court has also misinterpreted the provisions of the Act, as well as the rulings relied upon to arrive at the conclusion of finding on the accused not guilty of the offence under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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