INDRA CHIDAMBARAM Vs. QUICK FOTOS

JUDGEMENT

(1.) The complainant in C.C.No.6703 of 2006 on the file of the XVIII Metropolitan Magistrate, Sadapet, Chennai, is the appellant. The appellant filed the above private complaint under sections 138 and 141 of the Negotiable Instruments Act (for short, "N.I.Act") stating that the respondent is a partnership firm and it was carrying on business in the name and style of M/s.Quick Fotos at Chennai and that one of the partners of the respondent, namely, Mennal Narayanan, borrowed a sum of Rs.7,82,820/- from the appellant and acknowledged her liability and promised to settle the amount and thereafter, she issued a cheque bearing No.216839 dated 20.8.2001 for a sum of Rs.7,82,820/- in favour of the appellant and when the cheque was presented for collection on 20.8.2001, the same was returned unpaid for the reason "account was closed", on 20.8.2001. Therefore, the appellant sent a legal notice dated 27.8.2001 and in reply, the respondent sent a legal notice dated 21.8.2001 denying the issuance of cheque in question and thereafter, failed to make the payment. Therefore, the complaint was filed against the respondent under the provisions of the N.I.Act.

(2.) The appellant/complainant examined two witnesses and marked 12 Exhibits and the respondent examined two witnesses and marked 12 Exhibits. The trial Court on the basis of the oral and documentary evidence held that the appellant failed to prove that the cheque was issued towards legally enforceable debt and acquitted the respondent and aggrieved by the same, this Appeal is filed.

(3.) The learned counsel for the appellant submitted that the signature found in the cheque was not disputed by the respondent and the respondent claimed that the cheque was lost in the year 1996 itself and no complaint in that regard was filed by the respondent either to the bank and the document Ex.D.10 relied on by the respondent to prove that she sent the intimation to the bank on 10.7.1996 regarding the loss of cheque should not have been accepted by the Court below as there was no seal on Ex.D.10 by the bank for having received the letter on 10.7.1996 and the bank manager has also admitted in evidence that there was no endorsement regarding receipt of such letter by the bank. Ex.P.11, the extract from the Cheque Return Register, also did not support the case of the respondent regarding the loss of cheque and the intimation given to the bank and admittedly, the cheque was returned only on the ground of "account closed" and not on the ground that the complaint was received about the loss of cheque. Even in the year 1996, there was no endorsement in the Cheque Return Register to that effect. He also submitted that once the cheque has been issued and the signature is admitted, the payee is entitled to draw presumption under law that the cheque was issued towards legally enforceable debt and there is no need to prove passing of consideration for the issuance of cheque and only after the drawer rebutted the presumption by convincing and probable defence, the payee has to prove the passing of consideration and in this case, the respondent failed to rebut the presumption of raising probable defence and the defence raised by the respondent that the cheque was lost even in the year 1996 and that was also intimated to the bank as evidenced by Ex.D.10 cannot be accepted as Ex.D.10 does not contain the seal of the bank for having received the letter on 10.7.1996. Therefore, the trial Court erred in holding that there was no evidence that the cheque was issued for a legally enforceable liability. He, therefore, submitted that the judgment of the trial Court is liable to be set aside and the Criminal Appeal has to be allowed.