P BENEDICT FERNANDEZ Vs. RAJIV BHATIA

JUDGEMENT

(1.) (Criminal Appeal filed against the order of acquittal dated 7.8.2002 in C.C.No.4889 of 1999 on the file of the 8th Metropolitan Magistrate, George, Town, Chennai.) This Criminal appeal has been preferred against the Judgment of the learned VIII Metropolitan Magistrate, George Town, Chennai dated 7.8.2002 made in C.C.No.4889 of 1999. The said case was taken on file, based on the complaint of the appellant herein filed under Section 200 Cr..P.C. alleging that the respondent herein had committed an offence punishable under Section 138 of the Negotiable Instruments Act(hereinafter referred as the Act).

(2.) THE following are brief averments found in the complaint of the appellant herein filed before the learned VIII Metropolitan Magistrate, Chennai : The respondent/accused issued a cheque bearing No.964196 dated 15.4.1999 for a sum of Rs.2,60,000/ - drawn on Indian Bank, Kolathur Branch, Chennai towards repayment of part of the loan availed by the respondent/accused from the appellant/complainant. When the said cheque was presented for realisation through the appellant's/complainant's bankers, viz., State Bank of Mysore, Main Branch, Chennai on 19.4.1999, the same was returned dishonoured with an endorsement "funds insufficient" on 21.4.1999. The said fact of dishonour of cheque was brought to the notice of the respondent/accused and a demand for payment was made by a lawyer's notice dated 4.5.1999. Inspite of the fact that the said notice was received by the respondent/accused on 5.5.1999, he did not issue any reply nor did he make payment towards dishonour of cheque within 15 days from the date of receipt of the said statutory notice. Hence the offence punishable under Section 138 of the Act became complete on the expiry of fifteen days from the date on which the respondent/accused received statutory notice.

(3.) ADVANCING arguments on behalf of the appellant/complainant, Mr. T.Arulraj, learned counsel for the appellant contended that the finding of the Court below to the effect that the charge against the accused has not been proved beyond reasonable doubt is erroneous, unsustainable and liable to be reversed by this Court in exercise of its appellate powers. Learned counsel for the appellant further contended that disregarding the provisions contained in Section 118A and 139 of Negotiable Instruments Act, the learned Metropolitan Magistrate proceeded on the erroneous assumption that initial burden of proof of the existence of a debt or other liability was on the appellant/complainant that the learned Metropolitan Magistrate had failed to draw the presumption under the above said sections, in the absence of any evidence on the side of the respondent/accused sufficient enough to rebut the said presumption, the learned Metropolitan Magistrate had unnecessarily embarked upon a scrutiny as to the sufficiency of the evidence adduced on the side of the appellant/complainant to prove the existence of debt or other liability that the learned Metropolitan Magistrate also committed an error for arriving at a conclusion that the signature found in Ex.P.5, Postal acknowledgment Card was not that of the respondent/accused that the said conclusion was not at all warranted in the light of the fact that no such defence plea was taken by the respondent/accused either during his examination under Section 313(1) or during the cross -examination of the witnesses examined on the side of the appellant/complainant and that viewed from any angle, the judgment of the learned Metropolitan Magistrate holding the respondent/accused not guilty of the offence with which he stood charged was in fact discrepant, legally unsustainable and liable to be set aside and reversed.