P ESWARAN Vs. J A ABDUL HAMEED

JUDGEMENT

(1.) THIS appeal is preferred by the complainant challenging the Judgment of acquittal passed by the Judicial Magistrate, Avinashi, in C.C.No.134 of 1996 dated 22.11.2002 acquitting the accused for the offence under Section 138 of Negotiable Instruments Act (for short "The Act").

(2.) THE case of the complainant is that on 10.04.1996, the accused borrowed Rs.2,50,000/- from him with a promise to return the same within a period of two months. THEreafter, the complainant made several reminders to the accused to repay the amount and ultimately on 10.05.1996, the accused issued a cheque, Ex.P.1, dated 10.05.1996 for a sum of Rs.2,50,000/- drawn on State Bank of India, Avinashi Branch, in favour of the complainant. THE complainant further stated that on 23.08.1996, he has deposited the cheque, Ex.P.1, dated 10.05.1996 before the State Bank of India, Avinashi. THEreafter, the cheque was dishonoured on the ground of "Insufficient Funds". Ex.P.2 is the Banker's Memo. Ex.P.3 is the State Bank of India, Bank Chalan, dated 23.08.1996. THEreafter, the complainant sent a registered legal notice, Ex.P.4, dated 26.08.1996 calling upon the accused to pay the amount towards the dishonoured cheque. THE accused gave a reply, Ex.P.5, dated 07.09.1996, denying the averments contained in the legal notice sent by the complainant. THE complainant sent a rejoinder notice under Ex.P.6 dated 17.09.1996. But in spite of receiving the notice and even after 15 days from the receipt of the notice, the accused failed to pay the amount towards the dishonoured cheque, Ex.P.1 and therefore the complainant stated that the accused has committed the offence punishable under Section 138 of the Act.

(3.) PER contra, Mrs.Vedavalli Kumar, learned counsel appearing for the respondent/accused contended that the learned Trial Judge has given clear and categorical reasons based on the materials available on record for passing the order of acquittal. The learned counsel for the respondent/ accused further submitted that the learned Trial Judge has rightly held that neither in Ex.P.4, statutory notice, nor in his complaint the complainant has stated the reason for giving loan of Rs.2,50,000/- to the accused. It is also contended by the learned counsel for the respondent/accused that there is absolutely no explanation given by the complainant that why the cheque issued on 10.05.1996 was deposited by him only on 23.08.1996, nearly after a period of three months, and that the conduct of the complainant itself throws considerable doubt about his version to the effect that the cheque, Ex.P.1, was issued by the accused towards the legally enforceable liability. It is also pointed out by the learned counsel for the respondent/ accused that the present version of the complainant in the deposition that he has deposited the cheque on 23.08.1996 at the instruction of the accused is neither mentioned in his statutory notice, Ex.P.4 nor mentioned in his complaint and therefore it is a clear case of afterthought and made only with a view to fill up the lacuna. The learned counsel for the respondent/accused also contended that several material factors were not mentioned in Ex.P.4, Statutory notice, sent by the complainant to the accused. It is further submitted by the learned counsel for the respondent/accused that the defence theory of the complainant receiving two blank cheques while the accused availed the chit fund amount through M/s.Easwaran Chit Fund running by the complainant is also probabilised by the materials available on record. The learned counsel for the respondent/accused lastly submitted that the accused has rebutted the presumption contemplated under Section 139 of the Act by eliciting answers in the cross-examination of the evidence of P.W.1, the complainant, as well as through circumstance and preponderance of probabilities of the case and the learned counsel placed reliance on the decision in BHARAT BARREL AND DRUM MANUFACTURING COMPANY VS. AMIN CHAND PAYRELAL reported in AIR 1999 SC 1008.