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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 ..... t at the rate of 18% per annum. In discharge of the said liability, the accused issued the cheque, dated 07.07.2009 and when the cheque was presented for collection, the same is returned as "funds insufficient". After issuing a demand notice and since the respondent/accused failed to make payment within the period of 15 days, the complaint was filed. 2. After recording the sworn statement and taking cognizance, the accused was summoned. Upon questioning, the accused denied the charge and stood trial. The complainant examined himself as P.W. 1 and one Amararam as P.W. 2. On behalf of the complainant, the original cheque was marked as Ex. P-1; the return memo as Ex. P-2; the debit advice as Ex. P-3 and the demand notice as Ex. P-4. Upon ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant in not believing the original presentation of the complaint and holding that the complaint is presented beyond the period of limitation and that condonation of delay was also not filed and acquitting the accused, is unsustainable in law. He would submit that the complaint was duly presented, albeit, before the wrong Court. However, the presentation was recorded and the matter was returned with an endorsement to represent before the concerned Court, having territorial jurisdiction. Accordingly, instead of representing the complaint within a period of 30 days, the matter was represented along with 5 days delay in representation. The appropriate Court took the complaint on file and proceeded with the matter. Therefore, he would submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit, he has stated that the accused was introduced to him through one of his friends in Chennai. Whereas in the plaint filed by him in Rajhamundry, it is clearly stated that the accused and the complainant are having their shops nearby and they were very close friends. Similarly, the date of issue of cheque, mentioned in the complaint as well as in the affidavit, is false, since, even prior to that, the complainant has issued stop payment and had given a complaint in which the C.S.R. is given and even an enquiry is made with the complainant. He would submit that the letter of stop payment is marked by summoning the concerned official of the I.N.G. Vysya Bank, which is on record as a defence document. He would submit that the defence which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 accused and therefore, prayed that this Court need not interfere with the finding of acquittal. 12. I have considered the rival submissions made on behalf of either side and perused the material records of the case. At the outset, this is an appeal against the order of acquittal. This Court, considering an appeal against an order of acquittal, would upturn the findings of the lower Appellate Court, if only the same is not a possible view. In this regard, as far as the first finding of the Trial Court, regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Further, the Appellate Court had taken into consideration that the complainant, in his proof affidavit, has deposed to the effect that in the year 2008, the accused was introduced to him, but, in the cross-examination, 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 Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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