For the sake of convenience, the appellant and the respondent will be referred to as the complainant and the accused.
2.It is the case of the complainant that on 20.06.2014, the accused borrowed Rs.31,00,000/- for business purpose and the accused issued a cheque, bearing No.305427 dated 20.10.2014 (Ex.P.1) for Rs.31,00,000/-. The complainant presented the cheque for encashment with Karur Vysya Bank, Erode Branch and the same was returned vide Bank Memo (Ex.P.2) for insufficiency of funds. The complainant issued a statutory notice dated 19.01.2015 (Ex.P.3), for which, the accused sent a reply notice dated 30.01.2015 (Ex.P.6) disputing the very liability and calling upon the complainant to furnish a colour photocopy of the impugned cheque. The complainant sent a rejoinder notice dated 04.02.2015, enclosing a photocopy of the impugned cheque. Since the accused did not make any payment, the complainant launched a prosecution in STC.No.203 of 2015 under Section 138 of the Negotiable Instruments Act, against the accused before the learned Judicial Magistrate, Fast Track Court No.I, Erode. On receipt of summons, the accused appeared and they were questioned about the substance of accusation, which he denied.
3.To prove the case, the complainant examined himself as PW1 and 10 Exhibits were marked. When the accused were questioned under
Section 313 of the Code of Criminal Procedure, about the incriminating circumstances, they denied the same. On behalf of the accused, two witnesses were examined and four exhibits were marked.
4.The Trial Court, after considering the evidence adduced by the complainant and hearing the arguments on either side, convicted the accused for offence under Section 138 of the Negotiable Instruments Act, and sentenced the accused 2 and 3 to undergo six months rigorous imprisonment and to pay a fine of Rs.5,000/- each in default to undergo 15 days rigorous imprisonment.
5.Challenging the conviction and sentence, the accused filed an appeal in C.A.No.176 of 2016, in which, the learned II Additional District and Sessions Judge, Erode, acquitted the accused on 27.03.2017. Aggrieved by which, the complainant is before this Court.
6.Heard Mr.ARL.Sundaresen, learned Senior Counsel appearing for the counsel on record for the complainant.
7.The learned Senior Counsel appearing for the petitioner submitted that the complainant has raised arguable issues inasmuch as the first Appellate Court has not appreciated the evidence adduced by the complainant before the Trial Court in a proper perspective. He also submitted that the Trial Court has given cogent reasons for convicting the accused, which has been reversed by the first Appellate Court by mis- appreciating Ex.R4.
8.It is trite that the Special Leave to Appeal against the order of acquittal is not automatic. Only if the Court is satisfied the reasons for acquittal are prima facie unsustainable, the Court should grant leave to appeal. That apart, in Arulvelu and another Vs. State represented by the Public Prosecutor and another (2009) 10 Supreme Court Cases 206, the Hon'ble Supreme Court in Para 36 has stated as follows.
36.Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial Court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial Court is either perverse or wholly unsustainable in law.
9.It is the specific case of the complainant that the accused borrowed Rs.31,00,000/- on 20.06.2014 and to discharge the said debt, he had issued the impugned cheque, bearing No.305427 dated 20.10.2014 (Ex.P1). After receiving the statutory notice issued by the complainant (Ex.P3), the accused has given a reply notice dated 30.01.2015 (Ex.P6), disputing the very liability and contending that he had not issued the said cheque. Thus, at the earliest point of time, the accused has disputed all the liability and therefore, it is necessary for the complainant to prove the debt satisfactorily. The complainant has not filed any document to show that he had given Rs.31,00,000/-to the accused on 20.06.2014. Of course, the issuance of the cheque would cast a burden on the accused under
Section 139 of the Negotiable Instruments Act, by which, the debt would also be presumed in favour of the complainant. However, in this case, the accused has issued a legal notice dated 07.12.2013 (Ex.R.4) to the complainant, in which, the accused has stated that he had borrowed Rs.31,00,000/- from the complainant on 13.02.2012, 27.02.2012 and 01.03.2012 and as a security, he had given the impugned cheque, bearing No.305427 to the complainant. That apart, the accused has alleged in the notice dated 07.12.2013 (Ex.R.4) that out of Rs.30,00,000/-, he has paid Rs.15,00,000/- with interest till February 2013. The notice dated 07.12.2013 has been marked as Ex.R.4 during the cross examination of the complainant. The complainant has not given any explanation on this aspect, in his evidence before the trial Court. Therefore, in this case, the accused has discharged the initial burden under
Section 139 by preponderance of probability by marking the notice dated 07.12.2013 (Ex.R.4) through the complainant himself in the cross examination.
10.In other words, way back on 07.12.2013 itself, the accused had taken a stand that he had given the impugned cheque, bearing No.305427 (Ex.P.1) as security, for the loan of Rs.30,00,000/-, that was taken on three dates namely, 13.02.2012, 27.12.2012 and 11.03.2012, but whereas the complainant has set up the case as if the accused had issued the impugned cheque on 20.10.2014 for a loan of Rs.31,00,000/- that too, said to have been taken by him for a hand loan on 20.06.2014. What is unbelievable, is giving of hand loan for a huge sum of Rs.31,00,000/- to the accused without taking any document like Promissory Note, etc., This aspect has been considered by the first Appellate Court for acquitting the accused.
11.Mr.ARL.Sundaresen, learned Senior counsel appearing for for the complainant contended that the accused has taken a conflicting stand in the notice dated 07.12.2013 (Ex.R.4) and his reply notice dated 30.01.2015 (Ex.P.6). In the opinion of this Court, even if the accused takes a conflicting defence, he is required to discharge the burden under
Section 139 of the Negotiable Instruments Act only by preponderance of probability. In this case, by marking Ex.R.4-Notice dated 07.12.2013, the accused has satisfactorily discharged the burden under
Section 139 of the Negotiable Instruments Act but whereas the complainant has thereafter failed to prove the debt. In such view of the matter, this Court does not find any infirmity in the order of acquittal passed by the First Appellate Court, warranting grant of leave.
Hence, this Criminal Original Petition is dismissed. Consequently, Crl.A.SR.No.32277 of 2017 is also dismissed.