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TMI Blog2021 (11) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... te complaint against the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act and the same was taken on file by the learned Judicial Magistrate, Fast Track Court, Dharmapuri, in S.T.C. No. 15 of 2012. The said complaint was filed in connection with the two cheques issued for Rs. 1 lakh each which was returned as "insufficient funds". After issuance of necessary legal notice, the private complaint was filed by the de facto complainant. 3. After contest, the learned Judicial Magistrate, Fast Track Court, Dharmapuri, has held that the respondent/accused has committed the offence under Section 138 of the Negotiable Instruments Act and accordingly, by judgment dated 01.04.2014, convicted the respondent/accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e loan on 05.05.2007, the accused had issued another cheque bearing No. 885913 for an amount of Rs. 1,00,000/- and when the said cheque was presented for collection on 07.05.2007, it was returned due to insufficiency of funds in the account of the accused on 13.06.2007. Hence, legal Notice dated 20.06.2007 was issued to the accused on 20.06.2007 and the said notice was returned as unclaimed. One Arumugam, who is the Chief Manager of State Bank of India, was examined as P.W. 2. He had deposed that Ex. P.1-cheque dated 10.03.2007 was returned through Ex. P.3-Bank Return Memo and Ex. P.2-cheque dated 05.05.2007 was returned through Ex. P.4-Bank Return Memo. 7. The suggestive case of the defence is that the accused had not borrowed any amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heques-Exs. P.1 and P.2 is not entered in Ex. D.1-Bank Income and Expenditure Statement of the accused and Exs. P.1 and P.2 are not at all presented before 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puts restriction only on person takes money but not on the person advances money and also penalise the borrower and not the lender. 14. Learned counsel for the appellant also relied upon a decision of this Court [P. Pandiyarajan Vs. Parkunan] and the decision of the Hon'ble Apex Court reported in 2021 (2) CTC 357 [Kalamani Tex and others Vs. P. Balasubramanian] and submitted that the presumption raised under Sections 118 and 139 are rebuttable in nature. Learned counsel for the appellant submitted that as held in the case of M.S. Narayana Menon V. State of Kerala, reported in 2006 (3) CTC 730 (SC): 2006 (6) SCC 39, p. 32, which was relied upon in the judgment reported in 2019 (1) MWN (Cr.) DCC 145 (SC): 2019 (5) SCC 418 [Basalingappa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 suggested entry for penalty charges for processing and returning for insufficient funds. In this regard, it is necessary to extract the version of P.W. 2 in the cross-examination. 17. Hence, I find that since there is a zero balance in the account of the accused, even penalty charges for the cheque bounced could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be found place in Ex. D.1 due to the fact that the account of the accused as reflected in Ex. D.1 is 'zero' account and the accused has not probabilise the suggestive case and hence, the finding rendered by the Lower Appellate Court is perverse, as the same is not reflection of Exs. P.7 and D.1. Accordingly, the contra finding rendered by the Lower Appellate Court is liable to be vacated and the finding as that of the trial Court is liable to be restored. Consequently, it is held that the accused has miserably failed to probabilise the suggestive case. Consequently, the conviction laid by the trial Court is held to be sustainable in law. So also the sentence. Accordingly, the conviction and sentence passed by the trial Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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