K SOUNDARARAJ Vs. K DHANALAKSHMI

JUDGEMENT

(1.) THIS Criminal Appeal has been filed with the leave of the High Court under Section 378 (4) Cr.P.C. against the judgment of acquittal pronounced by the learned Judicial Magistrate No.V, Coimbatore in C.C.No.147 of 1999 dated 03.12.2001, a case instituted on private complaint for the offence punishable under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred as the Act) by the appellant herein against the respondent herein.

(2.) THE case of the appellant/complainant, in brief, is as follows:- THE respondent/accused and her husband, totally borrowed a sum of Rs.15,00,000/- from the various members of the family of the appellant/complainant. THE respondent/accused borrowed a sum of Rs.2,00,000/- on 17.07.1998 and another sum of Rs.2,00,000/- on 17.08.1998 from the appellant/complainant and executed two promissory notes on the respective dates of borrowal promising to repay the same with the interest at the rate of 24% per annum. For the said amount, the respondent/accused paid interest at the agreed rate till the end of August 1998. THEreafter, she did not make payment either towards interest or towards repayment of the principal. After repeated demands made by the appellant/complainant, she issued a cheque bearing No.177855 drawn on City Union Bank, Pappanaickenpalayam, Coimbatore with the instruction to present the same for encashment on 20.01.1999. However, a day before the said date i.e. on 19.01.1999, the respondent/accused requested the appellant/complainant not to present the said cheque on 20.01.1999 assuring that the entire amount borrowed, namely Rs.4,00,000/- along with the interest would be settled by 25.02.1999. With such a representation she also issued another cheque bearing No.177858 drawn on the same bank for a sum of Rs.2,48,000/-. She had issued specific instructions to the appellant/complainant to present the said cheques for collection on 25.02.1999. when the said cheques were presented for collection through the bankers of the appellant/complainant, namely M/s. Andhra Bank, Mill Road/N.H.Road, Coimbatore on 04.03.1999, both the cheques were returned on the very same day with endorsements "Funds Insufficient". A lawyer's notice dated 16.03.1999 was issued to the respondent/accused demanding payment of the amount covered by the dishonoured cheques. THE said notice was received on 23.03.1999. THE respondent/accused failed to make payment, but preferred to send a reply on 30.03.1999 containing false and vexatious allegations. THErefore, the appellant/complainant was constrained to prefer the complaint under Section 200 Cr.P.C. for prosecuting and punishing the respondent/accused for the offence punishable under Section 138 of the Act and another offence punishable under Section 420 IPC.

(3.) THE learned Judicial Magistrate No.V, Coimbatore, after considering the evidence available on record in the light of the arguments advanced on either side, came to the conclusion that the respondent/accused had adduced sufficient evidence to rebut the presumptions drawn under Sections 118 and 139 of the Act and that the evidence adduced on the side of the appellant/complainant was not enough to prove that the cheques were issued in discharge of a legally recoverable debt or other liability to attract the penal provisions under Section 138 of the Act. Based on the said finding, the learned Judicial Magistrate held that the accused was not proved to be guilty of the offence with which she stood charged and accordingly acquitted her by a judgment dated 03.12.2001. THE correctness of the said judgment of acquittal is put in issue in this criminal appeal.