B. UMA MAHESWARI Vs. PETCHIAMMAL

JUDGEMENT

(1.) THIS Criminal Appeal arises out of the judgment of acquittal dated 29.11.2007 made in C.C.No. 127 of 2006 on the file of the learned Judicial Magistrate No. I, Udumalpet.

(2.) THE appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act (hereinafter called as "the Act") stating that the respondent/accused has borrowed a sum of Rs. 1,75,000/ - on 15.10.2004 and executed a promissory note. When the appellant demanded the money, the respondent paid the interest and issued Ex.P1 cheque dated 06.02.2006 for the principal amount. When the appellant presented the cheque for encashment, it was returned as "account closed" as per return memo Ex.P2. So the appellant issued Ex.P3 statutory notice to the respondent on 08.02.2006 and the acknowledgment card was marked as Ex.P4. The respondent after receiving notice, neither she sent any reply nor repaid the amount. Therefore, the appellant/complainant was constrained to file a private complaint against the respondent/accused under Section 138 of the Act.

(3.) CHALLENGING the judgment of acquittal passed by the trial Court, learned counsel for the appellant/complainant submitted that the respondent/accused has admitted the issuance of cheque and hence, the appellant is entitled to invoke presumption under Section 139 of the Act that the cheque was issued by the respondent for discharging legally subsisting liability, which is a rebuttable presumption. But the trial Court without considering the same, has held that the appellant has no source of income to lend money and she has not produced the promissory note and even she has not assigned any reason as to why she has not produced the same and on that basis, the trial Court acquitted the respondent/accused. Since the respondent has not rebutted the presumption under Section 139 of the Act, the onus is not shifted to the appellant/complainant and that factum was not considered by the trial Court. It is further submitted that even the statutory notice has been issued by the appellant, the respondent has not sent any reply and that factum was also not considered by the trial Court. Hence, he prayed for allowing this appeal. To substantiate his arguments, he relied upon the following decisions: