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TMI Blog2018 (9) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the said cheque in Bank of Baroda, Uthukuli Branch, for encashment. But the said cheque has been returned as unpaid for the reason of "insufficient funds". For that, memo has been issued by the State Bank of India under Ex.P.2. Further, the same was intimated to the appellant through the debit advise under Ex.P.3. 2.4. On 13.06.2002, the appellant issued a statutory notice [Ex.P.4], in which, he demanded the respondent to pay the cheque amount within 15 days. The respondent received the said notice on 14.06.2002 under Ex.P.5. On receipt of the said notice, the respondent issued a reply notice to the respondent on 28.06.2002 under Ex.P.6. Thereafter, the appellant filed a complaint before the learned Judicial Magistrate, Perundurai, for initiating action against the respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881. Subsequently, the same has been transferred to the learned Chief Judicial Magistrate, on administrative grounds. 2.5. After taking cognizance in the trial Court, the accused himself examined as P.W.1, besides 6 documents were marked as Ex.P.1 to Ex.P.6. 2.6. When the above incriminating materials were put to the accused under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the appellant / complainant has not proved the existing liability of the respondent. Further held that the complainant is not having any source for giving Rs. 2 lakhs as a loan to the respondent. Moreover, the trial Court believing the documents exhibited on the side of the respondent held that the cheque pertaining to this case has not been issued by the respondent in order to discharge the loan alleged to be availed from the complainant. Now, challenging the above said order of acquittal, the present appeal has been filed. 3. When the appeal is taken up for consideration, I have heard the arguments of Mr.N.Manokaran, learned counsel appearing for the appellant, Mr.Naveen Kumar Murthi, learned counsel appearing for the respondent and also perused the records carefully. 4. The learned counsel appearing for the appellant would contend that, in the trial Court the signature of the respondent found in the cheque has been admitted. So, automatically Sections 118(a) and 138 of the Negotiable Instruments Act came into play. Further, the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. Even though t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 7. So, applying the principles laid down by our Honourable Apex Court with the case in our hand, it is necessary for the respondent to create a suspicious circumstances on the mind of this court about the cheque that has not been issued in discharging the legally enforceable debt. 8. In this occasion, the learned counsel appearing for the respondent would submit that the cheque is now under dispute is having the serial no.293101. According to the case of the appellant, the above cheque has been issued to the appellant on 28.05.2002 but previous to the said date as early as on 12.10.1999 itself, the respondent issued the said cheque in favour of one S.Manivannan. In order to prove the said fact the copy of the counterfoil pertaining to the disputed cheque along with other counterfoil has been marked in this case as Ex.R.2. Now, the entries made in the counterfoil established the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and all the way the stand of the complainant was that he had given a hand loan of Rs. 1,75,000 to the appellant-accused. We find no material on record in support of the claim of the complainant giving hand loan to the appellant-accused. There was also no calculation of account or stipulation of any interest on the alleged loan amount to show as to how the amount of Rs. 5,00,000 was figured, in return of a hand loan of Rs. 1,75,000, if at all taken by the appellant from the complainant. It is also not on record whether there was sufficient balance amount or not in the bank account of the accused when the cheque was dishonoured by the bank........." 12. In the said judgment, our Honourable Apex Court after observing the above said reasons acquitted the accused from the charges. In this case also, the principle laid down by our Honourable Apex Court is squarely applicable to the facts of this case. In fact, on the side of the complainant as already stated no document was produced to show the complainant is a competent person and he is having the source to advance Rs. 2 lakhs as a loan. So, this reason also creates a doubt on the case of the complainant. So, culling out the entire e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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