THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Criminal Appeal No. 316 of 2005 Saraswathi .. Appellant /Complainant
Vs
Nagappan ..Respondent /Accused
Prayer :- Criminal Appeal filed under Section 378 Cr.P.C., to set-aside the order dated 01.02.2005 passed in C.C. No.567 of 2007 on the file of the Judicial Magistrate No.I, Pondicherry.
For Appellant : Mr. A.N.Rajan For Respondent : No appearance JUDGEMENT Challenging the order of acquittal passed by the learned Judicial Magistrate No.1, Pondicherry in C.C.No.567 of 2001 dated 01.02.2005 for the offence under section 138 of the Negotiable Instrument Act, the present appeal has been filed.
2. The appellant herein is the complainant in a private complaint filed under section 138 of the Negotiable Instruments Act. The above complaint has been filed on the ground that the respondent/ accused had borrowed a sum of Rs.1,25,000/- from the complainant on 31.03.2001 and in order to discharge the same, the accused issued a cheque bearing No. 506686 for Rs.1,25,000/- drawn on Indian Bank, Rampakkam, Branch and requested the complainant to present the cheque after 31.03.2001. When the cheque was presented by the complainant before the drawee bank on 11.07.2004 and the cheque was returned as 'funds insufficient' on 14.07.2001. Thereafter, the complainant issued a legal notice on 18.07.2001 though the respondent received the notice and acknowledged the same, failed to repay the amount. Hence the complaint has been filed.
3. In order to prove his case, the complainant's son Devanathan was examined as P.W. 1 and the drawee bank and drawer bank managers were examined as P.W 2 and 3. The complainant also produced seven documents. Ex.P.1 is the Power of attorney, Ex.P.2 is the Cheque, Ex.P.3 is the return memo, Ex.P.4 is the copy of the Advocate notice, Ex.P.5 is the acknowledgment card, Ex.P.6 is the reply notice, Ex.P.7 is the xerox copy of petition in I.P.No. 4/01.
4. According to PW1, respondent/ accused borrowed the sum of Rs.1,25,000/- and inorder to discharge the amount he issued the cheque and when the same was presented for collection, it was returned and thereafter the complaint has filed the present complaint. PW 2 and PW 3 Bank Managers also spoke about the presentation of the cheque and the returned of the same on account of insufficiency of funds.
5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same.
6. The accused himself was examined as DW 1. The case of the accused was that he did not know the complainant but he has borrowed money from PW1' his son. At that time he has executed a Promissory note and as an additional security a cheque has also been given. Subsequently PW 1 also filed a suit in O.S.No.260 of 2001 on the file of the Additional Sub Court, Pondicherry for recovery of sum of Rs. 1,25,000/-. In order to substantiate his case, he has filed the copy of the plaint, which was marked as Ex.D1. It is the case of the accused that he had not borrowed any amount from the complainant and the cheque has been given as additional security for the loan taken from the P.W.1 and using the same, the present complaint has been filed. It is also submitted by the accused that the suit filed PW 1 was also decreed and he has also repaid the entire amount.
7. Considering all the materials, the trial court came to the conclusion that there are no evidence on the side of the complainant to prove that the accused has borrowed money. Since there are material altercations and correction in date and change of hand writing by using different inks in the signature and amount column and since the complainant failed to prove the liability and acquitted the accused. Now challenging the order of acquittal the present appeal has been filed.
8. Earlier notice has been issued to the respondent but not served on the respondent. Heard Mr.A.N.Rajan learned counsel appearing for the respondent and I have also perused all the records, carefully.
9. A perusal of the evidence of P.W.1, complaint, Ex.D1, the copy of the plaint, it could be seen that the suit has been filed for recovery of sum of Rs.1,25,000/- on the ground that the accused borrowed money from P.W.1 and executed a pronote, but he failed to repay the amount. It is the case of the accused that at the time of borrowing the amount from the PW1, the cheque has been given as additional security, and the same was misused by the complainant. Now, it is also submitted that the suit has been decreed and entire amount has been settled with that defense the respondent/accused, raised a doubt about the borrowal from the complainant and his liability to pay the amount; and rebutted the initial presumption.
10. Once the initial presumption of the accused has been raised, it is the duty of the complainant to prove that there is a legally enforceable liability. But there is no materials on record to show that the complaint has lent money to the accused and he failed to prove the liability. Considering all these aspects the trial court has come to conclusion that there is no legally enforceable liability and acquitted the accused.
11. I have carefully gone through the materials available on record and I find no infirmity or perversity in the judgment of the trial Court. In the above said circumstances, I find no reason to interfere with the order of acquittal passed by the trial Court hence the appeal fails and the same is deserves to be dismissed.
12. Accordingly, the Criminal Appeal is dismissed. The judgment of the trial Court in C.C.No.567 of 2001 dated 01.02.2005 is hereby confirmed.
15.11.2017
Index:Yes/ No Internet: Yes/No aav http://www.judis.nic.in
V.BHARATHIDASAN, J.
aav To
1. The Judicial Magistrate No.I, Pondicherry.
2. The Public Prosecutor, High Court, Madras.
Criminal Appeal No. 316 of 2005 15.11.2017 http://www.judis.nic.in