THE HON'BLE MR.JUSTICE V.BHARATHIDASAN Crl.A.No.215 &216 of 2005 R.Sumathi ... Appellant //vs// Vijaya Bharathi ... Respondent Prayer : Criminal Appeal filed under sections 378 of Criminal Procedure Code to set aside the judgement dated 19.01.2005 passed by the IX Metropolitan Magistrate, Saidapet, Chennai and made in C.C.No.1250 & 1251 of 2002.
For Appellant : Mr.S.Arokiyaraj For Respondent : M/s.G.Ramadevi COMMON JUDGMENT Challenging the order of acquittal, these two appeals have been filed. Since the appellant and the respondents are the same and the issue involved in these appeals are also same, both appeals have been disposed of, by a common judgment.
2. The appellant herein filed two private complaints for the offence under Section 138 Negotiable Instruments Act in C.C.No.1250 & 1251 of 2002 on the file of the IX Metropolitan Magistrate, Saidapet, Chennai.
3. The case of the appellant was that the respondent has borrowed a sum of Rs.1,00,000/-(Rupees One Lakh Only) and also promised to repay the same with the interest at 24% and executed a promissory note. In order to discharge the same, the respondent/accused issued 2 cheques, one cheque was drawn on Canara Bank for a sum of Rs.60,000/- dated 21.02.2012, and another cheque was drawn on Indian Overseas Bank, C.I.T. Nagar Branch for a sum of Rs.30,000/- dated 24.12.2001, when both these cheques were presented for collection in his account, the same were returned as “insufficient of funds”. Thereafter issued a legal notice directing the respondent to repay the amount. But the accused failed to pay. Hence the complaints had been filed.
4. In order to prove its case, the complainant examined himself as P.W.1 and he examined the Bank Manager as P.W.2, and he has marked the pronote as Ex.P.1 the cheque as Ex.P.2, the dishonour memo sent by the bank as Ex.D.3, the notice sent to the accused as Exs.P.4 and 5, and the accused reply was not marked as Ex.P.6 and the returned cheques as Ex.P.7.
5. When the above incriminating materials were put to the accused, he denied the same, the accused has examined, one Ramesh, Bank Manger, Indian Overseas Bank as D.W.1, where the accused having account, and the accused examined himself as D.W.2, and she has also marked joint account maintained by the accused and her husband as Ex.D.1 and the medical reports of the accused as Ex.D.2. The case of the accused was that, she has not received any amount from the complainant, only her husband and the complainant had some money transactions, in the above transaction her husband might have issued cheque and pronote.
6. Apart from that even though the complainant claimed that the loan amount has been transferred to her account in two installments. But, no amount has been transferred to the account to that effect, the Bank Manager was examined as D.W.1.
7. Considering all those materials the trial Court acquitted the accused on the ground that there is no evidence to show that the money has been paid to the accused, apart from that the notice was also not properly served on the accused. Now, challenging the same, the present appeals have been filed by the appellant.
8. Earlier, when the matter was taken up for hearing, the learned counsel for the respondent filed a memo withdrawing his appearance. In the above circumstances, M/s.Ramadevi is appointed as a Legal Aid Counsel for the respondent.
9. I have heard, Mr.S.Arokiyaraj, the learned counsel appearing for the appellant and M/s.G.Ramadevi, learned counsel appearing for the respondent and also perused the records carefully.
10. The specific case of the complainant is that, the accused along with her husband borrowed a sum of Rs.1,00,000/- and he has paid the loan amount in two installments, and the amount has also been transferred to the account of the accused in two installments, the first installment of Rs.50,000/- in August 2000, and another Rs.50,000/- is September,2000. For that she has executed pronotes on 18.08.2000. But, the Bank Manager of Indian Overseas bank, where the accused was having account was examined as D.W.1. According to him, husband of the accused, and the complainant were working in the very same branch, and no amount has been transferred to the account of the accused as claimed by complainant; Apart from that the accused also produced the joint statement account to show that no amount has been transferred to her account. Even though the complainant has claimed that the amount has been transferred to her account he did not come forward to produce the statement of account from his bank to show that money has been transferred to her account.
11. Considering all these materials, the trial Court came to the conclusion that the complainant has failed to prove that the money has been paid to the accused. I carefully gone through the entire materials. As rightly held by the trial Court when the complainant has specifically claimed that the loan amount has been transferred to the account of the accused, it is for him to prove that the loan amount has been paid to the accused. Even though, the accused has admitted the signature in the cheques, and the initial presumption is against her, the accused rebutted the initial presumption by examining the Bank Manager and filing an account statement to show that no amount has been transferred to her account. In the above circumstances, the burden shift on the complainant to prove that the money has been paid to her and there is a legally enforcible debt. But he has miserably failed to prove the same. In such circumstances, the trial Court rightly acquitted that the accused. I find no perversity in the judgment of the trial Court, and there is no reason to interfere with the order of acquittal passed by the trial Court. Hence, the appeals are deserve to be dismissed.
12. It is settled principal of law that in an order of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him and the fundamental principle of criminal justice delivery system is that every person, accused of committing an offence shall be presumed to be innocent, unless his guilt is proved by a competent Court of law. Secondly if the accused has secured an order of acquittal, the presumption of his innocence is reaffirmed and strengthened by the trial Court. Even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of the acquittal recorded by the trial Court.
13. In the result, these Criminal Appeals fails and accordingly, the appeals are dismissed and the impugned order of acquittal passed by the court below is hereby confirmed.
27.11.2017 dh/mrp Speaking order/Non-speaking order Index : Yes / No Internet : Yes / No To The learned IX Metropolitan Magistrate, Saidapet, Chennai.
V.BHARATHIDASAN,J.
dh/mrp
Crl.A.Nos.215 & 216 of 2005
27.11.2017