J K JAWARAPPA Vs. RAJAN

JUDGEMENT

(1.) THIS appeal arises out of the Judgment of acquittal dated 11.11.2005 made in C.C.No.545 of 2003 on the file of the learned Judicial Magistrate, Udhagamandalam.

(2.) THE appellant as a complainant filed a private complaint under Section 138 of the Negotiable Instruments Act stating that the respondent / accused borrowed a sum of Rs.4,00,000/- and for repaying the same, he issued Ex.P1-cheque bearing No.106828 drawn at Canara Bank, Edakadu Village at Nilgris. The said cheque was presented for encashment on 18.06.2003 in the State Bank of Travancore, Nilgris Branch and the same was returned with Ex.P2-Return Memo dated 18.06.2003 indicating as "Account Closed". In this regard, the appellant issued Ex.P3-statutory notice under Section 138 of the Negotiable Instruments Act on 30.06.2003. The said notice was received by the accused on 07.07.2003 under Ex.P4-acknowledgment card and sent Ex.P5-reply on 16.07.2003. Therefore, the accused issued cheque after knowing fully well that there is no sufficient funds to honour the cheque since his account closed, thereby, committed offence under Section 138 of the Negotiable Instruments Act.

(3.) RESISTING the same, the learned counsel for the respondent submitted that the respondent and his family members deposited to the tune of Rs.5,00,000/- with the appellant, who is the Managing Director of Annadhani Finance and to prove the same, the respondent filed the documents, i.e. Exs.D1 to D8. He further submitted that since the appellant had not repaid that amount to the depositors, a complaint had been preferred against him and on that basis, the appellant was arrested and the same had been published in the News Papers, which were marked as Exs.D10 and D11. He further submitted that the appellant herein has no sufficient funds to lend money to the respondent and the respondent herein had not given any cheque to the appellant. He further submitted that the disputed cheque was issued to one Chengaliappan and he is friend of the appellant. To prove Ex.D13, the Attestor of the document had examined before this Court. Hence, the trial Court is correct in holding that the appellant has not proved the ingredients of Section 138 of the Negotiable Instruments Act against the accused. Therefore, he prayed for dismissal of this appeal.