S. K. MUTHUSAMI Vs. S. BHUVANESWARAN

JUDGEMENT

(1.) This Criminal Appeal had been filed against the Judgment dtd. 25/4/2016 passed in C.C.No.36 of 2009 on the file of the learned Judicial Magistrate-I, Erode.

(2.) The brief facts, which are necessary for the disposal of this Criminal Appeal, are as follows:-

(3.) The learned Counsel for the Appellant submitted that the Appellant extended a loan of Rs.2,00,000.00 to the Accused. On receipt of which, the Accused handed over two cheques viz., Cheque No.010726 dtd. 10/5/2008 and Cheque No.010727 dtd. 20/5/2008 each for Rs.1,00,000.00 towards repayment of the loan. Those cheques were returned on 22/5/2008 with an endorsement "funds insufficient". Therefore, a legal notice was issued on 2/6/2008 to the Accused, which he received on 3/6/2008, however, the Accused neither replied nor paid the cheque amount. Thus, the Complainant- Appellant raised a strong presumption in favour that he had paid money to the Accused and for repayment of the same, the Accused had issued the two cheques. It is the submission of the learned Counsel for the Appellant that the learned Judicial Magistrate failed to consider that the presumption under Ss. 118 and 139 of the Negotiable Instruments Act, 1881 is in his favour. Even though such a presumption is a rebuttal presumption, the Respondent/Accused had neither issued a reply notice nor examined himself as a witness. The Respondent/Accused also did not mark any document to rebut the presumption. While so, the Trial Court ought to have recorded a finding of guilt against the Accused by drawing a presumption against him. Instead, the learned Judicial Magistrate-I, Erode dismissed the Complaint on the ground that the Complainant did not have sufficient means to extend the loan for a huge amount of Rs.2,00,000.00. The wherewithal or the capacity of the Complainant cannot be questioned when the initial presumption raised by him is stronger. When the Accused had not replied to the statutory notice and had not settled the dues, the Accused cannot be heard questioning the wherewithal of the Complainant. The learned Judicial Magistrate-I, Erode ignored those guidelines and acquitted the Accused which is perverse. Therefore, the Judgment of the learned Judicial Magistrate-I, Erode dtd. 25/4/2016 in C.C.No.36 of 2009 is perverse and it is to be set aside.