N. NACHIMUTHU Vs. K.S. RAMASAMY

JUDGEMENT

(1.) The appellant is the complainant in S.T.C. No.484 of 2012 on the file of the Metropolitan Magistrate, Fast Track Court No.1, Erode. He has filed the complaint for the offence under section 138 of Negotiable Instruments Act. The complainant alleged that the respondent herein has borrowed a sum of Rs. 15,00,000/- from him on 04.06.2012 and issued a post dated (04.07.2012) cheque and when the cheque was presented for collection on 04.07.2012, it was dishonoured with the remarks " insufficient funds". After serving legal notice to the respondent calling upon him to make payment, he has filed the complaint. In support of the case of the complainant, he examined himself as Pw1 and marked 3 documents. The respondent examined one witness as Dw1 and examined himself as Dw2 and marked 5 documents.

(2.) Before Trial Court, the respondent has taken a plea that the petitioner was a money lender and he had borrowed a sum of Rs. 20,36,000/- since 2010, and repaid Rs. 16,39,000/- in 28 instalments and he paid Rs. 60,000/- on 08.10.2011 and requested 4 months time for settling the balance amount. At that time, he handed over three unfilled cheques to the complainant. Apart from that, he paid a sum of Rs. 5,00,000/- on 17.05.2012 to the complainant as interest and subsequently, he paid the entire due amount to the complainant and when he asked for return of the cheques, the complainant demanded another Rs. 10 Lakhs and thereafter, he has filed the present complaint by misusing one of the cheques. It is also the case of the respondent is that of the three cheques, one cheque was misused and a compliant was filed in the name of one Shanmugam at Thiruchengodu and the third cheque was misused and a complaint was filed in the name of one Azhagesan at Erode. The complainant has produced the statement of accounts. The Trial Court accepted the defense of the respondent and the respondent was acquitted on the ground that the complainant failed to prove his case beyond reasonable doubt. Challenging the order of acquittal, this Criminal Appeal has been filed.

(3.) The learned counsel appearing for the appellant would submit that the Trial Court has committed error in simply accepted the defense version. It is seen that the Trial Court has not taken into account the presumption, raised against the accused, in terms of section 139 of Negotiable Instruments Act. According to him, the respondent has not discharged his onus.