SRI VARI BALAJI FINANCIERS Vs. R. SUBBULAKSHMI

JUDGEMENT

(1.) THE complainant as an appellant challenging the judgment of acquittal passed by the learned Judicial Magistrate No. 7, Coimbatore in S.T.C. No. 130 of 2007 on 28.05.2008 acquitting the respondent/accused from charges under Section 138 of Negotiable Instruments Act, 1881 has preferred the present appeal.

(2.) THE learned counsel for the appellant/complainant would submit that the respondent/accused had borrowed a sum of Rs. 1,40,000/ - from the complainant on 06.05.2005 and executed a promissory note to repay the same with an interest at the rate of 24% per annum. On 27.10.2006, the respondent/accused issued a cheque/Ex.p.2 for a sum of Rs. 1,90,400/ - drawn on Syndicate Bank, Kuviyamuthur Branch. When the cheque/Ex.P.2 was presented before the South Indian Bank, Saibaba Colony Branch, Coimbatore, it was returned as "Insufficient Funds" which was evidenced by Ex.P.3/Return memo, dated 30.12.2008. Ex.P.4 is the Debit advise. Hence, statutory notice has been issued under Ex.P.5 on 14.11.2008, which was evidenced by Acknowledgment Card/Ex.P.6. But the respondent neither sent any reply nor repaid the amount. Hence, the appellant/complainant preferred a police complaint under Section 138 of the Negotiable Instruments Act against the respondent/accused.

(3.) CHALLENGING the judgment of acquittal under Section 138 of Negotiable Instruments Act the learned counsel appearing for the appellant would submit that since the issuance of cheque and signature in the cheque has been admitted, the appellant is entitled to invoke presumption under Section 118 and 139 of Negotiable Instruments Act and the presumption has been rebutted by the respondent/accused and that factum has not been considered by the Trial Court. Hence, he prayed for setting aside the judgment of acquittal. To substantiate his arguments, he relied upon the decision reported in : 2010 (11) SCC 441 (Rangappa vs. Sri Mohan).