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TMI Blog2022 (7) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court cannot be put against the complainant, the said findings of the lower Appellate Court that the complaint is barred by limitation is not a possible view and is legally erroneous and therefore, the said findings cannot be sustained. Apart from the question of limitation, the lower Appellate Court, while re-appreciating the entire evidence on record, had rightly observed that the contention of the accused that the complainant is a sleeping partner of the Concern M/s. Ramesh Paper Marts was not at all denied by the complainant and therefore, this Court is of the view that the contention of the complainant that the accused was introduced through one of his friends in Chennai, in the year 2008, is unbelievable. The very fact that the accused had initiated criminal proceedings even though belatedly and even after referral by the Police, filed a protest petition and thereafter, filed a private complaint, especially when he has issued stop payment for the cheque, creates a doubt in the case of the complainant so as to make out a probable defence that the cheque was not issued on 07.07.2009 at Chennai in the manner as projected by the complainant. Further, the Appellate Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the defence, the accused examined himself as D.W. 1, one D. Saral as D.W. 2 and one J. Narasimma Rao as D.W. 3. On behalf of the accused, the plaint filed in O.S. No. 545 of 2011 was marked as Ex. D-1; the return statement in the said suit was marked as Ex. D-2; the reply notice, issued by the accused to the demand notice, was marked as Ex. D-3; the letter given by I.N.G. Vysya Bank was marked as Ex. D-4; the private complaint filed by the accused at Rajhamundry was marked as Ex. D-5 and the bank statement of the accused was marked as Ex. D-6. Thereafter, the Trial Court proceeded to hear the learned Counsel on both sides and by its judgment, dated 09.09.2016, found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881 and imposed a sentence of six months Simple Imprisonment and to pay a compensation of Rs. 7,00,000/- to the complainant. 3. Aggrieved by the same, the respondent/accused preferred Crl.A. No. 255 of 2016 and the learned I Additional Sessions Judge, Chennai, by a judgment, dated 11.12.2018, upturned the finding of the guilt into one of acquittal, as against which the present appeal is filed. 4. Heard Mr. E.J. Ayyappan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... top payment on 20.04.2009 itself, the same cannot be held as conclusive proof as the accused was smart enough to issue a cheque which he has already given a stop payment. Therefore, in the absence of adequate amount in his account to honour the cheque, the said pleading ought not to have considered by the lower Appellate Court. The learned Counsel, explaining the version of the complainant regarding the other findings of the Appellate Court, would also submit that the Appellate Court, in an offence under Section 138 of the Negotiable Instruments Act, 1881, ought not to have taken into account the mere allegations which are not proved to the level of preponderance of probability and ought not to have acquitted the accused and therefore, he would pray that the appeal be allowed and the conviction be restored. 8. Per contra, the learned Counsel appearing on behalf of the respondent, by taking this Court through the evidence on record, would submit that in this case, the presentation of the very complaint itself is doubtful and there is no initial of the presiding officer and there is no seal of the concerned Court. On behalf of the accused, even the concerned Court official is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal. 10. The learned Counsel would further submit that in this case, there was no averment in the complaint that P.W. 2 filled up the said cheque. The same is an improvement during the trial and there was no reason for the accused to have the cheque filled up by P.W. 2 who is the adjacent shop owner of the complainant. On the other hand, it may be seen that there were several disputes and the accused, in the evidence, stated that the complainant was a sleeping partner along with the accused in yet another business and the complainant did not even challenge the said statement by way of cross-examination. Therefore, in the absence of promissory note or proof for the liability, the accused, by examining defence witnesses has raised a probable defence in this case which has been considered in detail by the Appellate Court while acquitting the accused. 11. The learned Counsel would submit that this is an appeal against acquittal and therefore, unless the view taken by the lower Appellate Court is not at all a possible view, the finding of the acquittal can be upturned as to one of guilt. He would submit that the lower Appellate Court has given multiple reasons for acquitting the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amination, had admitted that the accused was known to him for the past 30 years. Even in the plaint filed by the complainant himself he had stated that the complainant and the accused were moving hand in glove as thick friends and therefore, when the complainant states before the Court that the accused has vouched for the genuineness of prompt repayment of loan, the Appellate Court doubts the very advancing of the loan. Further, the Appellate Court had taken into account that on 20.04.2009 itself by Ex. D-4, the cheques, including the subject matter cheque, were requested not to be honoured by the accused. This fact has been established by the accused by examining D.W. 3. Further, in the teeth of the fact that there was stop payment before the 2 months before the alleged date of issue of the cheque, the further fact, that the cheque was filled up by P.W. 2 after it is issued on 07.07.2009, was disbelieved by the Appellate Court, on the premise that when the complainant and the accused were known to each other for thirty years, the fact as to P.W. 2 filling up the cheque, seems to be unbelievable. The very fact that the accused had initiated criminal proceedings even though belated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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