P KALIAPPAN Vs. K BALASUBRAMANIAN

JUDGEMENT

(1.) This appeal arises against the the judgment in C.A.No.8 of 2010 by the learned Additional District Sessions Judge, Fast Track Court No.I, Salem, reversing the judgment passed in S.T.C.No.297 of 2008 dated 23.12.2009 by the learned Judicial Magistrate No.VI, Salem.

(2.) The case of the appellant is that he is a lorry broker and that the respondent herein borrowed a sum of Rs. 75,000/- from him and agreed to pay the said amount with the interest at the rate of 12% per annum. The respondent issued a cheque bearing No.750461 for Rs. 75,000/- dated 112007 drawn on the ING Vysya Bank Limited, Salem Branch. While issuing the cheque, the respondent promised that it would be honoured as and when the same is presented for collection. But when the appellant presented the cheque on 112007 through his bankers, the Karur Vysya Bank, Karipatty Branch, it was dishonoured on the ground of "insufficient of funds". Therefore, the appellant approached the respondent and asked him about the return of the cheque, the respondent claimed some excuses and requested the appellant to represent the cheque for payment on 16.01.2008 and assured that this time the cheque would be honoured. But that time also it was returned for the same reason "insufficient of funds". Therefore, the appellant sent a legal notice dated 23.01.2008 to the respondent. But the respondent though received the notice neither replied not repaid the cheque amount. Therefore, the appellant filed this complaint against the respondent for the commission of offence under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate No.VI, Salem. The Judicial Magistrate took up the case filed in S.T.C.No.297 of 2008. Hence, the complaint.

(3.) During the trial, in order to prove the case of the appellant examined himself as PW.1. The Clerk of Karur Vysya Bank, Karipatty Branch by name C.Vimal Raj had been examined as PW.2. The Manager of Karur Vysya Bank, Karipatti Branch had been examined as PW. PW.1 has marked the original cheque for Rs. 75,000/- as Ex.P1. The bankers memo is marked as Ex.P2 copy of the Advocate's notice marked as Ex.P3; Account statement of appellant's bank account is marked as Ex.P4; Postal acknowledgement card is marked as Ex.P5. On appreciation of materials before it, trial Court, under judgment dated 212.2009, convicted the respondent for the offence u/s.138 of the Negotiable Instruments Act and sentenced him to undergo two years S.I. and directed to pay double the amount of the cheque as compensation payable to the appellant. Against such finding, the respondent preferred criminal appeal in C.A.No.8 of 2010 on the file of learned Additional District and Sessions Judge, Salem, which came to be allowed under judgment dated 19.02.2010. There against, the present appeal has been filed.