SADASIVAM Vs. S CHITRALEKHA

JUDGEMENT

(1.) THIS appeal against the acquittal of the respondent/accused is filed by the complainant. The complainant filed private complaint before the Judicial Magistrate No. II, Erode, which is taken on file in C. C. No. 281 of 1995 under Section 138 of Negotiable Instruments Act.

(2.) THE facts, as per the private complaint, are that the accused borrowed sum of Rs. 50 ,000 /- by way of hand-loan from the complainant on 24. 8. 1994 and issued the post dated cheque of the date 24. 9. 1994 as per Ex. P-1. THE cheque, when it was presented for collection, was returned twice as "funds insufficient" and lastly as "refer to drawer" on 29. 3. 1995. THE complainant caused statutory notice Ex. P-6 dated 4. 4. 1995, which was replied by the accused under Ex. P-8 dated 7. 4. 1995 denying the claim of the complainant about the hand-loan and issuance of the cheque for the said loan by the accused and stating that the said cheque was issued only by way of security towards the dealings, the husband of the accused had with the complainant and specifically it is denied in the reply notice that there was liability of Rs. 50,000/- by the husband of the accused and for that purpose, the cheque Ex. P-1 was issued which made the complainant to file the said case.

(3.) THE learned counsel for the respondent/accused by referring to Exs. D-1 to D-4 and more particularly, the reply notice Ex. P-8 dated 7. 4. 1995, contended that inasmuch as it was made clear under Ex. P-8 that towards the amount of Rs. 3,70,000/- payable to the complainant by the husband of the accused, sum of Rs. 3,20,000/- was paid by way of demand draft and out of the balance of Rs. 50,000/-, Rs. 43,000/- was sent as detailed in Exs. D-3 and D-4 and there was further balance of amount payable to the complainant is only rs. 7,000/- and though she requested to return the post-dated cheque, the complainant with ulterior motive presented the same to the bank and therefore, it is further submitted that only towards sum of Rs. 50,000/- towards the dealings, the husband of the accused had with the complainant, the cheque ex. P-1 was issued by the accused by way of security and at the time of the issuance of cheque, no debt or liability incurred by the accused and payable to the complainant and therefore, no presumption can be drawn under Section 139 of the Negotiable Instruments Act that merely because Ex. P-1 cheque was issued by the accused, the accused received the amount noted in the cheque.