M PALANISAMY Vs. K KARVANNAN

JUDGEMENT

(1.) THE criminal appeal arises out of the judgment of acquittal dated 30.07.2004, made in C.C.No.250 of 2003 on the file of the Judicial Magistrate's Court, Rasipuram, Namakkal District.

(2.) THE appellant as a complainant preferred a private complaint under Sections 138 and 142 of Negotiable Instruments Act, stating that on 31.01.2002, the respondent/accused borrowed a sum of Rs.2,75,000/- from the appellant/complainant for his business purpose and agreed to repay the same with interest at rate of 12% per annum and also paid one year interest in advance and issued a post-dated cheque bearing No.591852, dated 31.01.2003 for Rs.2,75,000/-. When Ex.P1 cheque was presented into the Salem Central Co-operative Bank for encashment on 31.01.2003, it has been returned as 'insufficient funds' on 04.02.2003 and the return memos were marked as Exs.P2 and P3. Hence, the appellant issued a statutory notice Ex.P4 under Section 138(b) of Negotiable Instruments Act on 18.02.2003. The postal receipt was marked as Ex.P5. The respondent received the same under Ex.P6 acknowledgment card and sent a reply under Ex.P7. But the respondent/accused did not repay the amount. The respondent knowing fully well that there was no sufficient funds in his account, issued a cheque and thereby committed offence under Section 138 of Negotiable Instruments Act.

(3.) RESISTING the same, the learned counsel for the respondent submitted that the appellant has no financial status to lend such huge amount of Rs.2,75,000/- and he did not file any document to show that he is having such financial status. The appellant stated that on that date, he is having only a sum of Rs.50,000/- and he borrowed money from his father-in-law and his friend Rajendran. But, to prove the same, he has not examined his father-in-law and friend Rajendran. So the trial Court considered this aspect and came to the correct conclusion that the appellant is not having any financial status to lend amount to respondent, as he is only a sundry worker. The respondent has rebutted the presumption under Section 139 of N.I. Act, by way of examining himself as D.W.1. The defence has proved by preponderance of probabilities. The respondent has also rebutted the presumption by way of examining D.W.2, an officer from Sub-registrar office, through him, a partition deed was marked, in that, the description of house property alone given, it would not show the financial status of the appellant. To substantiate his arguments, he relied upon the decision of Apex Court reported in (2008) 4 SCC 54 (Krishna Janardhan Bhat v. Dattatraya G.Hedge) and prayed for dismissal of the appeal.