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TMI Blog2021 (10) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 138 of the Negotiable Instruments Act. 4. The appellant had initiated prosecution against the respondent and her husband for an offence under Section 138 of the Negotiable Instruments Act. 5. The appellant was the distributor of food products running his business in the name and style 'Sri. Anandha Jothi Vinayaka Enterprises'. The husband of the respondent, M. Ramkumar (arrayed as second accused in the complaint) was a manufacturer of food products marketing in the name and style 'R.R. Foods'. The respondent's husband supplied goods to the appellant upon payment of advance deposit and accordingly the appellant had paid an advance deposit of Rs. 2,40,300/- (Rupees Two Lakh Forty Thousand and Three Hundred on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. M. Ramkumar (The husband of the respondent) before the Trial Court within the time prescribed under the Statute. 7. During trial, the appellant examined himself as a witness and tendered 7 exhibits including the covering letter issued by the accused (EX. P1) and the legal notice (Ex. P3) issued prior to presentation of the cheque (Ex. P2). The respondent/accused did not examine any witness or tender and documents. 8. On appreciation of evidence so recorded, the trial Court reached the conclusion that the respondent and Mr. M. Ramkumar are guilty of the offence charged and hence convicted and sentenced the respondent and M. Ramkumar to suffer 6 months simple imprisonment and a fine of Rs. 5,000/-, in default has to undergo further simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first accused who is the wife of the second accused under his individual capacity and hence the above decision is not applicable to the facts and circumstances of the case and thus I find that the reasoning given by the lower Appellate Court in acquitting the first accused by an erroneously considering that the impugned Ex. P2 cheque is a Company cheque and A1 is a mandate holder which is factually in error as indicated above. 16. For the sake of clarity, at the risk of repetition in the cheque amount Ex. P2 was issued by Ex. A1 in her personal capacity and therefore he is not a mandate holder his signature in Ex. P2 was admitted. 17. Once the drawer admits the signature of the cheque, it is presumed that the drawer had given the cheque f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-existing legally enforceable debt against the accused for the said amount of Rs. 2,30,400/- Ex. P2 was issued and hence in the absence of any suggestive case being probabilized by the respondent, the lower Appellate Court has wrongly construed and allowed the appeal and committed in error in setting aside the well considered judgment of the trial Court and hence, all the findings rendered by the lower Appellate Court are hereby stands vacated and that of the trial Court is restored. 22. In view of the discussion in the preceding paragraphs, this Court holds that the conviction laid by the trial Court is restored. The order passed by the lower Appellate Court dated 10.11.2014 is set aside. The conviction passed by the trial Court is res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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