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TMI Blog2018 (7) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... m him on 02.12.2001 and with a view to discharge the said debt, the respondent has issued a cheque for Rs. 1,00,000/- dated 06.05.2002. The said cheque was presented in the bank on 20.09.2002 for encashment and the same was returned on 21.09.2002 as 'funds insufficient' in the respondent's account. The said fact was informed to the appellant on 28.09.2002. Thereafter, on 05.10.2002, the appellant has sent a statutory notice calling upon the respondent to pay the cheque amount within fifteen days from the date of receipt of the said notice. The respondent herein has received the said notice on 12.10.2002. Instead of paying the amount, he has sent a reply notice dated 12.10.2002 with false averments. Hence the appellant was constrained to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e postal acknowledgment was marked as Ex.P5. After receipt of the notice, instead of paying the amount, he has sent a reply with false avermnets. The said reply notice has been marked as Ex.P6. A copy of the report submitted by the Inspector of Police, Thillai Nagar, has been marked as Ex.P7. 5. Evidence on the side of the complainant was closed with PW1 and thereafter the accused was questioned u/s.313 of Cr.P.C., The accused denied them as false and also filed a written statement. He examined himself as DW1 and examined his father as DW2. 6. DW1 and DW2 have stated in their evidence that the DW1's mother was a subscriber in the chit which was conducted by PW1 and that being so, on 04.06.2002 at about 2.00 p.m., PW1 and six others ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W2. The learned Judicial Magistrate No.IV, Tiruchirapalli, after hearing both sides and considering the materials placed before him, found the accused guilty u/s.138 of the Negotiable Instruments Act and convicted him to undergo simple imprisonment for one year and also ordered to pay double the amount of the cheque amount as compensation to the complainant u/s. 357 (3) of Cr.P.C., 8. Aggrieved by the aforesaid Judgment, the accused filed an appeal in Crl.A.No.102 of 2006 on the file of the Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli. The learned Additional Sessions Judge by the Judgment dated 17.11.2006 has allowed the said appeal and set aside the Judgment and sentence passed by the Trial Court. Aggrieved by the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider that the suit also filed with a view to escape from making payment for the cheque. He further submitted that the learned Additional Sessions Judge erred in coming to the conclusion that the accused has rebutted the presumption by adducing satisfactory evidence and hence he prayed to allow the appeal and set aside the Judgment passed by the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli and restore the Judgment and Sentence awarded by the learned Judicial Magistrate No.IV, Tiruchirapalli. 12. The learned counsel for the respondent/accused has submitted that in this case, the complainant has not examined himself as witness before the trial court and only his daughter examined herself as power agent. He furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that Ex.P2/cheque is his cheque. He has also not disputed that the signature found in the said cheque is his signature. However, he denied the allegation that he borrowed the amount from the complainant on 02.12.2001 and in order to discharge the said debt, he issued Ex.P2 cheque. According to him, he does not know the complainant. He only knows PW1 as she conducted a chit in which his mother was a subscriber. His further case is that on 04.06.2002 at about 2.00 p.m., PW1 and others came to his house and criminally intimidated his mother by showing knife, aruval, etc, and obtained signatures from his mother in two blank pronotes. His further case is that PW1 and others have taken a blank cheque which was signed and kept by him in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has issued stop payment instruction to the bank, the bank memo (Ex.P3) shows that the cheque was returned on the ground 'funds insufficient'. It also shows that the accused has not issued any stop payment instruction to the bank. If really the cheque was taken away by PW1 as stated by the accused, he would have immediately sent intimation to the bank for stop payment. But, he has not done so. Further, he would have lodged a complaint before the police and that was also not done by the accused. Therefore, this court is of the view that the accused has not rebutted the presumption which has arisen under Section 139 of the Negotiable Instruments Act. The complainant has stated in Ex.P1 (power of attorney that he is not able to personally be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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