9911796707
TMI Blog2024 (6) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... at the complainant examined himself as P.W.1 on 16.02.2015 and the accused cross examined P.W.1 only on 07.10.2015. In the meantime, the accused was also questioned under Section 313 Cr.P.C. Therefore, the complainant, in the absence of a specific averment in the reply notice with regard to his financial capacity cannot be expected to prove his means at the fag end of the trial. The trial court Judge had analysed all the documents threadbare and had come to the conclusion that the accused is guilty of the offence punishable under Section 138 of NI Act. On the other hand the appellate court judge, even without a specific plea by the accused that the complainant did not have sufficient means to lend a sum of Rs.4,00,000/- to her, had rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same was returned on 20.02.2014 with an endorsement 'Account Closed', as is seen from the cheque return memo (Ex.P2 ). 3.3. Thereafter, the complainant issued a statutory notice dated 03.03.2014 (Ex.P3) to the accused calling upon the latter to pay the amount due under the cheque (Ex.P1) within a period of 15 days from the date of receipt of the notice. The accused received the statutory notice on 13.03.2014, as is evidenced by the postal acknowledgement card (Ex.P4), and sent a reply notice (Ex.P5) dated 25.03.2014, which according to the complainant, contained false allegations. 3.4. Therefore, the complainant filed a private complaint before the Judicial Magistrate, Fast Track Court No. I, Erode, under Section 200 Cr.P.C. against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Sessions Judge, Erode. The learned II Additional District Judge, Erode, allowed the appeal and acquitted the accused on the following grounds : i. The complainant had not proved his means to lend a sum of Rs.4,00,000/- to the accused. ii. The complainant did not also file his Income Tax Returns. 3.11. Aggrieved over the order of acquittal passed by the appellate court Judge, the complainant has preferred this Criminal Appeal. 4. Heard Mr.S.Kamadevan, learned counsel for the appellant and Mr.M.Guruprasad. learned counsel for the respondent. 5. Mr.S.Kamadevan, learned counsel appearing for the appellant would contend that the accused had not denied her signature on the cheque. Once the signature is admitted, there is a presumption under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signature is admitted there is a presumption under Sections 118 and 139 of the Negotiable Instruments Act unless the contrary is proved. The trial court judge had infact analysed this aspect and had convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. It is pertinent to point out that the accused had not questioned the financial capacity of the complainant. It is seen from the records that the complainant examined himself as P.W.1 on 16.02.2015 and the accused cross examined P.W.1 only on 07.10.2015. In the meantime, the accused was also questioned under Section 313 Cr.P.C. Therefore, the complainant, in the absence of a specific averment in the reply notice with regard to his financial capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant has been consistent throughout as can be noticed from a perusal of the complainant, demand notice and affidavit evidence. In fact, the signature on the cheque having not been disputed, and the presumption under Sections 118 and 139 having taken effect, the complainant's case stood satisfied every ingredient necessary for sustaining a conviction under Section 138. The case of the defence was limited only to the issue as to whether the cheque had been issued in discharge of a debt/liability. The accused having miserably failed to discharge his evidential burden, that fact will have to be taken to be proved by force of the presumption, without requiring anything more from the complainant. 9. In the instant case, the specific conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case. The accused even after receipt of the statutory notice,did not issue any notice to the said Kannan for return of the cheques allegedly issued by her husband. The averments in the reply notice (Ex.P5) are totally vague and it is a simple denial of borrowal of any amount from the complainant. The accused had not explained as to how the cheques belonging to her went to the hands of the complainant. 10. Mr.M.Guruprasad, learned counsel for the respondent / accused contended that the cheques issued by the husband of the accused to K.M.K. Finance were handed over to the present complainant and one Saravanakumar for the purpose of filing two difference cases. In order to substantiate this he relied on the mobile phone call records between ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
