TMI Blog2021 (11) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... to divert the attention of this Court by filing irrelevant document viz., Ex. D.1. Specific answer is given by P.W. 2-Manager that penalty charges for cheque bouncing could not be reflected in the account of the accused, since the account of the accused has already touched zero balance . All the pleas raised by the respondent/accused to probabilise the suggestive case stands negatived. It appears that such pleas are raised by the accused only for the sake of to built a false case. Accordingly, there are no hesitation to hold that the accused has miserably failed to probabilise the suggestive case and in view of the fact that the private complainant has successfully satisfied the necessary ingredients under Section 139 of the Negotiable Instruments Act and on the failure of the accused to probabilise the suggestive case, it is found that the order of acquittal passed by the Lower Appellate Court is erroneous and finding thereon is found to be perverse and hence, both the finding as well as the order of acquittal of the Lower Appellate Court are liable to be set aside. The finding rendered by the trial Court that the accused is entitled for statutory presumption is correct one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, Dharmapuri, the respondent/accused has preferred an appeal in C.A. No. 17 of 2014 before the learned Additional District and Sessions Judge, Dharmapuri. The learned Additional District and Sessions Judge, Dharmapuri, has allowed the said appeal by setting aside the order passed in S.T.C. No. 15 of 2012 by the learned Judicial Magistrate, Fast Track Court, Dharmapuri, and acquitted the respondent herein/accused. As against the said order of acquittal passed by the learned Additional District and Sessions Judge, Dharmapuri, this Criminal Appeal has been preferred by the de facto complainant. 5. Heard both sides and perused the records. 6. The de facto complainant, who was examined as P.W. 1, has clearly deposed that the accused had borrowed an amount of ₹ 3 Lakhs on 05.02.2007 agreeing to repay it on 10.03.2007 and issued a cheque for an amount of ₹ 1,00,000/- bearing No. 885909 pertaining to State Bank of India, Krishnagiri Branch. When the said cheque was presented for collection with his bankers viz., State Bank of India, Dharmapuri, on 26.04.2007, the same was returned on 30.05.2007. When the de facto complainant demanded further payment of the loan on 05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the bank. 10. The accused has admitted that Exs. P.1 and P.2-cheques are belongs to his account. The issuance and ownership of Exs. P.1 and P.2 were admitted. According to the accused, the cheques were not issued to the private complainant and there is no legally enforceable debt behind Exs. P.1 and P.2. 11. Perused the records. Exs. P.1 and P.2, original cheques and Exs. P.3 and P.4-xerox copies of the return memos were filed on the ground that the original was misplaced in the office of the Advocate. In order to show that Exs. P.1 and P.2, cheques were presented for encashment and the same was returned, P.W. 2, Manager of the Bank was summoned and Ex. P.7-cheque referred and returned register of the State Bank of India was marked. In Ex. P.7, the entirety of the reports, presentation of the cheques and nature of transaction as spoken to by P.W. 2 were duly reflected and mentioned. Therefore, this Court finds that the finding rendered by the learned Magistrate that the de facto complainant has satisfied the essential ingredients of Section 139 of the Negotiable Instruments Act to raise a statutory presumption in his favour is found to be proper and correct. The contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same belongs to the accused and as stated above, the signature in the cheque is admitted by the accused. Exs. P.3 and P.4 are the Xerox copies of the Bank Return Memo. It is the office copy of the Advocate and in order to show the presentation of the cheque for encashment and the return of the cheque, the private complainant has filed Ex. P.7-Cheque Referred and Returned Register, wherein, it is categorically stated that the above two cheque numbers were clearly mentioned and the same were returned due to insufficient funds. 16. Thus, this Court finds that the private complainant is entitled for statutory presumption under Section 139 of the Negotiable Instruments Act. In order to probabilize the suggestive case, the respondent/accused raised a plea that Ex. D.1 was marked by the respondent to show that the cheques were not presented for encashment. Had there been any such cheque presented for encashment, it could have been found relates entry between the period 25.06.2007 and 09.06.2007. D.W. 1 had deposed regarding the entries made in Ex. D.1. He has categorically stated that he has brought the original Cheque Referred and Returned Register, wherein, there is no sugge ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
