K.Vijayakumar vs Pushparaj

This is an appeal filed under Section 378 of the Code of Criminal Procedure, praying to set aside the judgment dated 12.11.2007 passed by the

learned Judicial Magistrate No.II, Tiruchirappalli in C.C.No.1507 of 2005.

Brief facts of the case of the Appellant/Complainant are as follows:

2.1.The Respondent/Accused borrowed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) from the Appellant/Complainant on

06.04.2005 and in order to liquidate the said amount, executed an agreement for sale of his property in favour of the Appellant/Complainant. He

also issued a cheque dated 06.04.2005 (Ex.P.1) in favour of the Appellant/Complainant. When the Appellant/Complainant presented the cheque

for encashment with his bankers, namely, ICICI Bank, Cantonment Branch, Tiruchirappalli, the same was returned unpaid for the reason

''insufficient funds'', as evidenced by the Challan (Ex.P.2), Cheque return memo (Ex.P.3) and Debit Advise (Ex.P.4). Thereafter, the

Appellant/Complainant, issued a legal notice dated 25.06.2005 (Ex.P.5) to the Respondent/Accused directing him to pay the amount due under

the cheque. The Respondent/Accused received the said notice as evidenced by the postal acknowledgment card (Ex.P.6).

2.2.According to the Appellant/Complainant, in spite of receipt of the said notice, the Respondent/Accused did not come forward to make good

the payment and also did not issue any reply notice. Therefore, the Appellant/Complainant filed a private complaint under Section 200 of Cr.P.C.

before the learned Judicial Magistrate No.II, Thiruchirappalli, against the Respondent/Accused for an offence under Section 138 of the Negotiable

Instruments Act.

The main contention of the Respondent/Accused is that he borrowed a sum of Rs.50,000/- (Rupees Fifty Thousand only) from the wife of the

Appellant/Complainant, on 27.12.2000 and executed a mortgage deed in respect of his properties. According to him, he also handed over a blank

cheque to the wife of the Appellant/Complainant which has been misused by the Appellant/Complainant to file the present complaint. The specific

contention of the Respondent/Accused is that he never borrowed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) from the

Appellant/Complainant as alleged by him and that the Appellant/Complainant has not adduced any acceptable evidence to prove his contentions.

In the trial Court, the Appellant/Complainant examined himself as P.W.1 and marked Ex.P.1 to Ex.P.7 and the respondent examined himself as

R.W.1 and marked Ex.R.1.

After full contest, the learned Judicial Magistrate No.II, Tiruchirappalli, dismissed the complaint and acquitted the Respondent/Accused under

Section 255(1) of Cr.P.C., aggrieved by which the Appellant/Complainant has filed the present appeal on the following grounds:

i)The Trial Court has committed an error in holding that the complainant has not proved his case when there is a presumption under Sections 118

and 139 of the Negotiable Instruments Act.

ii)The finding of the Trial Court that there is no proof to hold that the accused owed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand

only) to the complainant is erroneous.

iii)The order of acquittal passed by the learned Judicial Magistrate is mainly based on surmises and conjectures.

Heard the learned counsel for the Appellant/Complainant.

The point for consideration in the instant appeal is whether the judgment of the learned Judicial Magistrate No.II, Tiruchirappalli is liable to be

set aside.

At the outset, it may be observed that the Respondent/Accused has not disputed his signature on the cheque (Ex.P.1). His main contention is

that he borrowed a sum of Rs.50,000/- (Rupees Fifty Thousand only) from the wife of the Appellant/Complainant on 27.12.2000 and handed

over a blank cheque to her. According to him, this particular cheque was misused by the Appellant/Complainant to file the present complaint.

A perusal of the evidence of P.W.1 shows that P.W.1 has admitted that he is in the habit of lending amount to various persons. It is also

admitted by him that his wife lent a sum of Rs.50,000/- (Rupees Fifty Thousand only) to the Respondent/Accused and she has issued a notice to

the Respondent/Accused on 20.05.2005, a copy of which is marked as Ex.P.7, requesting the Respondent/Accused to repay the sum of

Rs.50,000/- (Rupees Fifty Thousand only).

The contention of the Appellant/Complainant is that the Respondent/Accused borrowed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty

Thousand only) on 06.04.2005. When the Respondent/Accused had not repaid the amount of Rs.50,000/- (Rupees Fifty Thousand only) to the

wife of the Appellant/Complainant which he borrowed on 27.12.2000, it is difficult to believe that the Appellant/Complainant lent a sum of

Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) to the Respondent/Accused on 06.04.2005. Furthermore, the Appellant/Complainant

during the course of crossexamination admitted that there was a sale agreement between him and the Respondent/Accused with regard to a

purchase of land belonging to the Respondent/Accused and a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) was given to the

Respondent/Accused. This deposition of the Appellant/Complainant (P.W.1) is totally in contradiction to his own averments in the complaint in

which he has stated that the Respondent/Accused borrowed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) and in order to

liquidate the same, executed an agreement in his favour.

It is also pertinent to mention that the Appellant/Complainant did not produce the said agreement before this Court. At this juncture, it is

relevant to point out that when the Appellant/Complainant is in the habit of lending amounts to various persons, he should have maintained proper

Account books. He has not furnished any of the Account books before the Trial Court eventhough he admits that he is an income tax assessee. He

did not also adduce any evidence to show that he had a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) on 06.04.2005.

It is settled law that in a case under Section 138 of the Negotiable Instruments Act, though there is an initial presumption in favour of the

Appellant/Complainant, the Respondent/Accused has to rebut it by way of acceptable evidence. What is most important is that the standard of

proof required for rebutting any such presumption is not as high as that required of the prosecution and it is only preponderance of probabilities. In

the instant case, the Appellant/Complainant has not adduced any evidence to show that he lent a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty

Thousand only) in favour of the Respondent/Accused on 06.04.2005. The learned Judicial Magistrate No.II, Tiruchirappalli has analysed the entire

evidence on record and has given cogent reasons for acquitting the Respondent/Accused. I therefore, see no reasons to interfere with the findings

of the learned Judicial Magistrate No.II, Tiruchirappalli.

Accordingly,

i)The Criminal Appeal is dismissed.

ii)The judgment in C.C.No.1507 of 2005 dated 12.11.2007, passed by the learned Judicial Magistrate No.II, Tiruchirappalli is confirmed.