2022 (7) TMI 1025

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....zance, the accused was summoned. Upon questioning, the accused denied the charge and stood trial. The complainant examined himself as P.W. 1 and one Amararam as P.W. 2. On behalf of the complainant, the original cheque was marked as Ex. P-1; the return memo as Ex. P-2; the debit advice as Ex. P-3 and the demand notice as Ex. P-4. Upon questioning about the material evidence on record, the accused denied them as false. Thereafter, on behalf of the defence, the accused examined himself as D.W. 1, one D. Saral as D.W. 2 and one J. Narasimma Rao as D.W. 3. On behalf of the accused, the plaint filed in O.S. No. 545 of 2011 was marked as Ex. D-1; the return statement in the said suit was marked as Ex. D-2; the reply notice, issued by the accused to the demand notice, was marked as Ex. D-3; the letter given by I.N.G. Vysya Bank was marked as Ex. D-4; the private complaint filed by the accused at Rajhamundry was marked as Ex. D-5 and the bank statement of the accused was marked as Ex. D-6. Thereafter, the Trial Court proceeded to hear the learned Counsel on both sides and by its judgment, dated 09.09.2016, found the accused guilty for the offence under Section 138 of the Negotiable Instrum....

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....ourt in Rajhamundry and since the promissory note is filed in the said suit, it was not filed before the present Court. 7. The learned Counsel would further submit that the presumption under Section 139 of the Negotiable Instruments Act, 1881 enures to the benefit of the complainant and even though the defendant had examined the witness, namely the Bank Manager, the said defence will not take him anywhere. Merely because he had given stop payment on 20.04.2009 itself, the same cannot be held as conclusive proof as the accused was smart enough to issue a cheque which he has already given a stop payment. Therefore, in the absence of adequate amount in his account to honour the cheque, the said pleading ought not to have considered by the lower Appellate Court. The learned Counsel, explaining the version of the complainant regarding the other findings of the Appellate Court, would also submit that the Appellate Court, in an offence under Section 138 of the Negotiable Instruments Act, 1881, ought not to have taken into account the mere allegations which are not proved to the level of preponderance of probability and ought not to have acquitted the accused and therefore, he would pra....

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....ting out certain portions of the reply notice, he would submit that the contention of the learned Counsel for the appellant is factually incorrect. He would submit that inspite of the receipt of the reply notice, the same was suppressed by the complainant in the complaint. Pointing out the sworn statement taken, he would submit that there are no necessary details in the sworn statement and therefore, the same itself is a ground for acquittal. 10. The learned Counsel would further submit that in this case, there was no averment in the complaint that P.W. 2 filled up the said cheque. The same is an improvement during the trial and there was no reason for the accused to have the cheque filled up by P.W. 2 who is the adjacent shop owner of the complainant. On the other hand, it may be seen that there were several disputes and the accused, in the evidence, stated that the complainant was a sleeping partner along with the accused in yet another business and the complainant did not even challenge the said statement by way of cross-examination. Therefore, in the absence of promissory note or proof for the liability, the accused, by examining defence witnesses has raised a probable defen....

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.... Marts was not at all denied by the complainant and therefore, this Court is of the view that the contention of the complainant that the accused was introduced through one of his friends in Chennai, in the year 2008, is unbelievable. Further, the Appellate Court had taken into consideration that the complainant, in his proof affidavit, has deposed to the effect that in the year 2008, the accused was introduced to him, but, in the cross-examination, had admitted that the accused was known to him for the past 30 years. Even in the plaint filed by the complainant himself he had stated that the complainant and the accused were moving hand in glove as thick friends and therefore, when the complainant states before the Court that the accused has vouched for the genuineness of prompt repayment of loan, the Appellate Court doubts the very advancing of the loan. Further, the Appellate Court had taken into account that on 20.04.2009 itself by Ex. D-4, the cheques, including the subject matter cheque, were requested not to be honoured by the accused. This fact has been established by the accused by examining D.W. 3. Further, in the teeth of the fact that there was stop payment before the 2&fr....