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TMI Blog2024 (6) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant on 20.01.2014 to meet her business expenses and issued a cheque bearing number 738825 (Ex.P1) dated 18.02.2014 drawn on IDBI Bank, Sathy Road, Erode Branch for a sum of Rs.4,00,000/-. She also promised to repay the said amount together with interest at the rate of 12% per annum. 3.2. When the complainant presented the cheque for collection on 19.02.2014 through his bankers, viz.,, Punjab National Bank, Erode Branch, the 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 peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under Section 138 of the Negotiable Instruments Act, and sentenced her to undergo Simple Imprisonment for a period of 6 months and to pay a compensation of Rs.4,00,000/- to the complainant under Section 357(3) Cr.P.C., in default, to undergo Simple Imprisonment for a period of one month, vide his judgment and orders dated 04.11.2016. 3.10. Aggrieved over the same, the accused filed an appeal in C.A.No.195/2016 before the II Additional 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es issued by the husband of the accused to the present complainant in order to file a false case against the complainant. He therefore would contend that when the appellate court had properly analysed the evidence on record, there is no reason for this court to interfere with the same. He therefore, prayed for dismissal of the present appeal. 7. At the outset it may be observed that the accused had not denied her signature on the cheque (Ex.P1). Once the 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 Instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase "unless the contrary is proved". 54. Nothing significant has been elicited in the crossexamination of the complainant to raise any suspicion in the case set up by the complainant. Other than some minor inconsistencies, the case of the complainant 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 under Section 2 of Human Rights Act. Therefore, the contention of the accused that she lodged a complaint against the said Kannan of K.M.K. Finance is totally false and infact, Kannan has lodged a complaint against the accused and her husband. In the complaint, the said Kannan had specifically averred that the he was threatened by the accused to withdraw the case filed by him against her. The accused had not established how the FIR in Crime No.527/2014 is relevant to the present 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment and orders passed by the trial court judge is restored. The conviction and sentence passed by the trial court judge in S.T.C.No.265/2014 against the accused is hereby confirmed. 12. In the result, i. This Criminal Appeal is Allowed. ii. The judgement and orders dated 27.03.2017 in Crl.A.No.195/2016 passed by the II Additional District Judge, Erode, is set aside and the judgement and orders dated 04.11.2016 in S.T.C. No.265/2014 passed by the Judicial Magistrate, Fast Track Court - I, Erode, is confirmed. iii. The accused shall surrender before the learned Judicial Magistrate, Fast Track Court - I, Erode within 15 days from the date of receipt of a copy of this order / uploading of the order, failing which, the Trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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