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2022 (7) TMI 1025 - MADRAS HIGH COURTDishonor of Cheque - funds insufficient - discharge of legally subsisting liability or not - Acquittal of the accused - section 138 of NI Act - whether complaint is barred by time limitation or not - HELD THAT:- This is an appeal against the order of acquittal. This Court, considering an appeal against an order of acquittal, would upturn the findings of the lower Appellate Court, if only the same is not a possible view. In this regard, as far as the first finding of the Trial Court, regarding the period of limitation and presentation is concerned, even though the Court staff was examined by the accused, he has stated that he was not the concerned staff during the relevant period. The complainant states that the complaint was presented before the appropriate Court and it was returned. Not making of initials and seal can be a mistake of the Court, for which, the complainant cannot be found fault with. Even if there is a delay in representation, still the original date of complaint is only to be taken into account for the purpose of the limitation. Second, it is also held that the mistake of the Court cannot be put against the complainant, the said findings of the lower Appellate Court that the complaint is barred by limitation is not a possible view and is legally erroneous and therefore, the said findings cannot be sustained. Apart from the question of limitation, the lower Appellate Court, while re-appreciating the entire evidence on record, had rightly observed that the contention of the accused that the complainant is a sleeping partner of the Concern M/s. Ramesh Paper Marts was not at all denied by the complainant and therefore, this Court is of the view that the contention of the complainant that the accused was introduced through one of his friends in Chennai, in the year 2008, is unbelievable. The very fact that the accused had initiated criminal proceedings even though belatedly and even after referral by the Police, filed a protest petition and thereafter, filed a private complaint, especially when he has issued stop payment for the cheque, creates a doubt in the case of the complainant so as to make out a probable defence that the cheque was not issued on 07.07.2009 at Chennai in the manner as projected by the complainant. Further, the Appellate Court also held that in view of the probable defence and in the absence of further proof towards the advancing of loan and discharge of legally subsisting liability, has come to the conclusion that the complainant has failed to establish his case about the legally enforceable liability and acquitted the accused. Thus, even though the learned Counsel for the appellant was able to dislodge the finding regarding the limitation by projecting a clear-cut case, the finding of the lower Appellate Court, with regard to the merits after considering the factors and the discrepancies in the evidence of the complainant, coupled with the evidence adduced by the accused, cannot be upturned by this Court in the appeal against acquittal, as on the appreciation of the evidence, such a view by the lower Appellate Court is possible. There are no merits in this Criminal Appeal, against the order of acquittal - appeal dismissed.
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