V. MARIMUTHU Vs. MOORTHY

JUDGEMENT

(1.) THE de-facto complainant in C.C.No.105 of 2010 on the file of the learned Judicial Magistrate No.I, Tiruchirappalli, which was instituted based on a private complaint for an alleged offence punishable under section 138 of the Negotiable Instruments Act, 1881 has brought-forth this appeal against the judgment of acquittal pronounced by the trial court on 21.09.2010.

(2.) THE appellant herein preferred the above said complaint making the following allegations. The respondent/accused is none other than the father-in-law of Damodharan, the son of the appellant/complainant. The respondent/accused borrowed a sum of Rs.1,47,000.00 on 24.06.2005 from the appellant/complainant at the residence of the appellant/complainant in Mannachanallur. Promising to repay the said amount, the respondent/accused executed a promissory note on the said date of borrowal itself. Again on 29.07.2005, the respondent herein/accused came to the residence of the appellant/complainant along with his cousin Narayanan and also Damodharan, the son of the appellant/ complainant and borrowed a further sum of Rs.1,45,000.00 executing a promissory note for the said amount. When the appellant/accused demanded repayment of the said amounts borrowed under the promissory notes, the respondent/accused promised to do so within a month. Thereafter repeated demands were made by the appellant/complainant as a result of which, the respondent/accused issued three post-dated cheques, namely a cheque dated 04.05.2007 with the cheque No.901428 for a sum of Rs.1,25,000.00, cheque dated 14.05.2007 with cheque No.901429 for a sum of Rs.1,00,000.00 and cheque dated 21.05.2007 with cheque No.901430 for a sum of Rs.1,00,000.00. All the three cheques were issued for a total sum of Rs.3,25,000.00 on 27.04.2007 taking into account the principal amount of Rs.2,92,000.00 and the interest accrued till the said date on which the cheques were issued. All the cheques had been drawn on Syndicate Bank, Sri Ayyappan Nagar (Chinmaya Nagar), Koyambedu, Chennai-600 092 in respect of the account maintained by the respondent/accused with the said branch. When the cheques dated 04.05.2007 and 14.05.2007 were presented for collection through Uco Bank, Mannachanallur branch on 24.08.2007 they were returned with a dishonour memo containing with the note (funds insufficient) as the reason for dishonour. The said cheques were returned unpaid on 08.09.2007. Similarly, the third cheque dated 21.05.2007 was presented for collection through the very same bank on 31.08.2007 and the same was also returned without payment on 12.09.2007 stating the very same reason as the ground for dishonour. Intimating the dishonour of the cheques and calling upon the respondent/accused to make payment of the amounts covered by the cheques, a statutory notice was issued by the appellant/complainant on 19.09.2007 and the same was received by the respondent/accused on 28.09.2007. However without complying with the demand made in the notice, the respondent/accused caused issuance of a reply notice dated 28.09.2007 denying the averments made in the statutory notice. Hence the appellant/complainant was constrained to prefer the complaint for prosecuting and punishing the respondent/accused for the offence under section 138 of the Negotiable Instruments Act, 1881. The learned Judicial Magistrate No.III, Tiruchirappalli following the procedure prescribed for taking cognizance of the offence on private complaint, took it on file as STC No.319/2008 and issued process. The respondent/accused who was served with the process, entered appearance and approached the Sessions Court in Crl.M.P.No.342/2010 praying for the transfer of the said case from the file of the learned Judicial Magistrate No.III, Tiruchirappalli to the file of any other Judicial Magistrate functioning at Tiruchirappalli. In the said petition, the learned Principal Sessions Judge passed an order on 23.03.2010 transferring the case from the file of the learned Judicial Magistrate No.III, Tiruchirappalli to the file of the learned Judicial Magistrate No.I, Tiruchirappalli. On such transfer, the learned Judicial Magistrate No.I, Tiruchirappalli decided to follow the procedure contemplated for private complaint cases and took it on file as C.C.No.105/2010. There also on appearance, the respondent/accused denied the charge levelled against him and the learned Judicial Magistrate No.I, Tiruchirappalli completed the trial. During the trial, the appellant/complainant deposed as a sole witness on his side and produced eleven documents marked as Exs.P1 to P11 in order to prove his case against the respondent/accused. After the completion of evidence on the side of the appellant/complainant and also after the examination of the respondent/accused under section 313(1)(b) of Cr.P.C. the respondent/accused examined five persons as DWs.1 to 5 and produced ten documents as Exs.D1 to D10 on his side. The learned Judicial Magistrate No.I, Tiruchirappalli, after the completion of recording of evidence, heard the arguments advanced on both sides and considered the evidence adduced on both sides in the light of the points urged in the arguments advanced on either side. Upon such consideration, the learned Judicial Magistrate No.I, Tiruchirappalli held the respondent/accused to be not guilty of the offence with which he stood charged, namely an offence punishable under section 138 of the Negotiable Instruments Act, 1881. Incorporating the said finding, the learned Judicial Magistrate No.I, Tiruchirappalli pronounced the impugned judgment on 21.09.2010 and acquitted the respondent herein/accused. The said judgment is challenged in the present appeal on various grounds set out in the grounds of appeal incorporated in the appeal petition.

(3.) THE arguments advanced by the appellant/complainant, who appeared as a party-in-person and the arguments advanced by Mr.B.Jameel Arasu, learned counsel for the respondent/accused were heard and the materials available on record including the impugned judgment of the trial court, evidence adduced on both sides both oral and documentary were also considered by this court and they were re-appraised.