DURAISAMY Vs. KUMARASAMY

JUDGEMENT

(1.) For the sake of convenience, the appellant and the respondent will be referred to as the complainant and the accused respectively. It is the case of the complainant that the accused was his friend for several years; on 24.12.2007, the accused borrowed a hand loan of Rs.5,00,000/- for his urgent expenses and on the same day, he issued a post-dated cheque dated 07.01.2008 for Rs.5,00,000/- drawn on Canara Bank, B.N.Road Branch, Tiruppur (Ex.P1); the complainant presented the cheque for collection on 07.01.2008 through his Bank, viz. Indian Bank, Court Road, Tiruppur Main Branch; the said cheque was returned unpaid on 08.01.2008 on the reasoning "account closed" (vide Ex.P3), which fact was informed to the complainant by his bank vide advice dated 08.01.2008 (Ex.P4); the complainant issued the statutory notice dated 12.01.2008 to the accused (Ex.P5), which was received by the accused on 16.01.2008 (vide Ex.P7); the accused issued a reply notice dated 25.01.2008 (Ex.P8) repudiating the debt. Hence, the complainant initiated a prosecution in STC.No.1307 of 2008 before the Judicial Magistrate No.I, Tiruppur, under Section 138 of the Negotiable Instruments Act. On receipt of summons, the accused appeared and was questioned under Section 251 Cr.P.C. He denied the accusation. To prove the case, the complainant examined himself as PW1. Mr.Ramakrishnan, the Branch Manager of Canara Bank (bank of the accused) was examined as PW2 and Mr.Thirunavukkarasu, Branch Manager of Indian Bank (bank of the complainant) was examined as PW3. On behalf of the complainant, 12 documents were marked. The accused was questioned under Section 313 Cr.P.C. and he denied the incriminating circumstances appearing against him. The trial Court, after considering the evidence on record, by judgment dated 17.02.2012, convicted the accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo three months rigorous imprisonment and pay a compensation of Rs.5,05,560/- within two months under Section 357(3) Cr.P.C. Challenging the conviction and sentence, the accused filed C.A.No.83 of 2012 in the Court of Session, Tiruppur. The learned I Additional Session Judge, Tiruppur, by judgment dated 20.09.2012, set aside the conviction and acquitted the accused. Challenging the acquittal, the complainant is before this Court, after obtaining special leave to appeal.

(2.) Though notice was served on the accused, he had not chosen to enter appearance. Therefore, this Court appointed Mr.V.Rajamohan, (Enrolment No.661/1994) as Legal Aid counsel for the accused and papers were furnished to him.

(3.) Heard Mr.V.Gopinath, learned Senior Counsel appearing for the complainant/appellant and Mr.V.Rajamohan, learned counsel appearing for the respondent/accused.