SHANMUGAM Vs. K K RAMAIYA

JUDGEMENT

(1.) THIS Criminal Appeal has been filed under Section 378(4) of CODE OF Criminal PROCEDURE, 1973 as against the judgment dated 11.09.2002 made in C.C.No.167 of 2000 by the Judicial Magistrate, Nagapattinam.) THIS Criminal Appeal by special leave has been preferred under Section 378(4) of Cr.P.C. by the appellant herein on whose complaint under Section 200 Cr.P.C. prosecution was initiated in C.C.No.167 of 2000 on the file of the Judicial Magistrate, Nagapattinam against the judgment of the said court dated 11.09.2002 acquitting the respondent herein/accused for an offence punishable under Section 138 of Negotiable Instruments Act, 1881.

(2.) THE appellant herein preferred a complaint on the file of the learned Judicial Magistrate, Nagapattinam containing the following allegations:- On 03.04.1999, the respondent herein/accused borrowed a sum of Rs.50,000/- from the appellant herein/complainant and executed a Promissory Note promising to repay the said amount in six months period together with an interest @ 18% per annum. THE respondent herein/accused was paying interest as agreed for a period of six months. However, since he had not chosen to repay the principal within the agreed period of six months, the appellant herein/complainant pressurized him for making such repayment. Consequently, the respondent herein/accused issued a post dated cheque bearing the date '09.10.1999' and cheque No,956347 drawn on Canara Bank, THEvur branch for a sum of Rs.50,000/-. A day before the due date i.e. on 08.10.1999, the respondent/accused met the appellant herein/complainant in his residence and requested him not to present the cheque for encashment and to wait for some more time as he had not made arrangements to keep sufficient funds in his account. After having waited till 27.02.2000, the appellant herein/complainant met the respondent/accused on the said date and appraised him of the position that the cheque would become time barred if the same was not presented for encashment within six months from the date of cheque. As a result of the said appraisal, the respondent herein/accused informed the appellant herein/complainant that he could present the cheque on 28.02.2000 and encash the same. When the cheque was presented in Canara Bank, THEvur branch on 28.02.2000, it was dishonoured and returned with a dishonour note "funds insufficient". THEreafter on 11.03.2000, the appellant herein/complainant caused a statutory notice to be issued to the respondent herein/accused, which was received by him on 14.03.2000. Instead of complying with the demand made therein, the respondent herein/accused chose to issue a reply notice denying the borrowal and containing false allegations. After receiving the reply notice, the appellant herein/complainant came to know that the respondent herein/accused had given the cheque without having sufficient funds in his account, failed to make payment of the amount covered by the cheque when the dishonour of cheque was informed to him by a notice within the time stipulated in the statute and thus committed an offence punishable under Section 138 of Negotiable Instruments Act.

(3.) THEREAFTER the learned Judicial Magistrate, Nagapattinam heard the arguments advanced on either side, considered the evidence on record in the light of the arguments advanced and upon such consideration, came to the conclusion that the appellant herein/complainant had not proved that the respondent herein/ accused committed an offence punishable under Section 138 of the Negotiable Instruments Act beyond reasonable doubt and that there were reasonable doubts regarding the complainant's case, which would lead to the acquittal of the respondent herein/accused giving him the benefit of doubt. In line with the said finding, the learned Judicial Magistrate held the respondent herein/accused not guilty of the offence under Section 138 of the Negotiable Instruments Act and acquitted him of the charge of having committed such offence, giving him the benefit of doubt. The said judgment of acquittal pronounced by the learned Judicial Magistrate, Nagapattinam on 11.09.2002 is challenged in this appeal by the appellant herein/ complainant after getting special leave under Section 378(4) Cr.P.C on various grounds set out in the appeal petition.