9911796707
TMI Blog2018 (9) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... y notice when the cheque was dishonoured. Thirdly, the trial Court, while analysing the cheque, has found that the ink of the name and signature and the ink of the amount and date are different. The difference found in the cheque i.e. the ink of name and signature and the amount and date are also presumed to be in favour of the respondent. Therefore, the appellant has not established his case. Hence, the trial Court found that the respondent is entitled for acquittal and there is no need to interfere with the judgment passed by the Court below. In a criminal case, it is not necessary for the respondent/accused to disprove the case of the prosecution beyond reasonable doubt. If the respondent is able to satisfy the Court by legally acceptable defence that the case of the prosecution lacks bona fide, the respondent will be entitled to the benefit of doubt - Further, when there are two views possible, one in favour of the respondent/accused and the other in favour of the appellant/complainant, the view favouring the respondent/accused should be taken into consideration in an appeal against acquittal. There is no reason to interfere with the order of acquittal passed by the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with an endorsement Funds insufficient on the same day. (ii)On the contrary, the respondent sent a legal notice dated 05.08.2009 stating that the appellant received ₹ 5,00,000/- from him on 03.01.2009 and ₹ 1,00,000/- on 10.02.2009 and accepted to repay the total amount of ₹ 6,00,000/- in two instalments. Accordingly, the appellant gave ₹ 1,00,000/- on 23.03.2009 and ₹ 50,000/- on 14.04.2009 in two installments in the presence of one Pushparaj and he assured that he will repay the remaining amount of ₹ 4,50,000/- within one month. But, the respondent, on 10.08.2009 met the appellant in his house and informed that without his knowledge, his brother-in-law only sent the legal notice before two months, and requested him to give two months time to repay the due amount. Accordingly, the appellant presented the cheque on 04.11.2009 at Thaico Bank, Thiruvarur and again it was returned due to insufficiency of funds on 05.11.2009. In such circumstances, the respondent again on 12.11.2009 sent two other legal notices to the appellant. The appellant sent another legal notice dated 18.11.2009 to the respondent giving 15 days time to repay the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint before the learned Judicial Magistrate, Tiruvarur. 4.The learned counsel for the appellant further submitted that the trial Court failed to see that the presumption under Section 139 of the Negotiable Instruments Act, 1881 had not been rebutted by the respondent under Section 118 and 139 of the Negotiable Instruments Act, 1881. He also failed to see on the basis of trust, the appellant gave ₹ 5,05,000 and the cheque has been issued to clear the legally enforceable debt. As the respondent has committed an offence under the provisions of the Negotiable Instruments Act, 1881 he has to be convicted under the said Act. The learned trial Judge, without considering the evidence submitted by the appellant, erroneously acquitted the respondent. Hence, the judgment passed by the learned Magistrate is unsustainable either in law or on facts and the same is liable to be set aise and the respondent shall be convicted and direct him to pay the compensation amount. 5.Heard Mr.M.L.Ramesh, learned counsel for the appellant and perused the materials available on record. 6.When the matter was taken up for hearing on 21.10.2016, though notice was duly served on the respondent, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed the appellant that without his knowledge, his brother-in-law only sent the legal notice before two months and requested him to give two months time to repay the due amount. Accordingly, the appellant presented the cheque on 04.11.2009 at Thaico Bank, Thiruvarur and again it was returned as insufficiency of funds on 05.11.2009, Ex.P.6. In such circumstances, the respondent again on 12.11.2009 sent another two legal notices, Exs.P.7 and P.8 to the appellant. Hence, the appellant sent another legal notice dated 18.11.2009, Ex.P.9 to the respondent giving 15 days time to repay the said amount. The respondent without repaying the said amount, sent Ex.P.11, notice dated 03.12.2009 to the appellant. Hence, he made a complaint before the learned Judicial Magistrate, Tiruvarur. In order to prove the case, the appellant himself examined as P.W.1 and marked 12 exhibits. 9.The letter dated 25.07.2009 wrote by the appellant is marked as Ex.P.1. The postal acknowledgment card is marked as Ex.P.2. The cheque bearing No.683398 dated 05.08.2009 drawn on I.C.I.C.I. Bank is marked as Ex.P.3. The Memo dated 05.08.2009 issued by the State Bank of India is marked as Ex.P.4. The legal notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.03.2009, the appellant, the said Paramanandam and one Indirani executed yet another sale agreement. He also obtained Power of Attorney in respect of Survey Nos.165/1 and 165/4. 12.It is seen from Ex.P.5 that on 03.01.2009, the appellant received ₹ 5,00,000/- from the respondent in the presence of the witnesses, without giving any document and on 10.02.2009, the appellant further received ₹ 1,00,000/- and thereafter, the respondent received ₹ 1,00,000/- on 22.3.2009 and ₹ 50,000/- on 14.04.2009. 13.Ex.P.6 reveals that the cheque bearing No.683398 has been returned on 05.11.2009 with an endorsement Insufficient funds . 14.It is seen from Ex.P.7 that the respondent along with the appellant and others are jointly carrying on the real estate business. At one point of time, the appellant took the respondent's ICICI Bank cheque leaf and forged the same by filling up of ₹ 5,00,000/-. The respondent came to know the said fact on 04.11.2009 when it was returned with an endorsement Insufficient of funds and he has no money transaction with the appellant. 15.Moreover, it is known from Ex.P.1, complaint that on 20.04.2009, the respondent met th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, while analysing the cheque, has found that the ink of the name and signature and the ink of the amount and date are different. The difference found in the cheque i.e. the ink of name and signature and the amount and date are also presumed to be in favour of the respondent. Therefore, the appellant has not established his case. Hence, the trial Court found that the respondent is entitled for acquittal and there is no need to interfere with the judgment passed by the Court below. 22.In a criminal case, it is not necessary for the respondent/accused to disprove the case of the prosecution beyond reasonable doubt. If the respondent is able to satisfy the Court by legally acceptable defence that the case of the prosecution lacks bona fide, the respondent will be entitled to the benefit of doubt. 23.In this case, the trial court has considered all the above aspects and has held that the appellant had failed to prove the case against the respondent beyond reasonable doubt. 24.Further, when there are two views possible, one in favour of the respondent/accused and the other in favour of the appellant/complainant, the view favouring the respondent/accused should be taken into c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
