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2015 DIGILAW 3682 (MAD)

N. Duraisamy v. Sarojini

2015-12-01

A.SELVAM

body2015
JUDGMENT : The order of acquittal passed in Criminal Appeal No.517 of 2004, by the Additional District and Sessions-cum-Fast Track Court, No.I, Coimbatore, is being challenged in the present criminal appeal. 2. The appellant herein, as complainant, has filed the complaint in question under Section 138 of the Negotiable Instruments Act, 1881, on the file of the Judicial Magistrate No.2, Coimbatore and the same has been taken on file in Calendar Case No.777 of 2003, wherein, the present respondent has been shown as sole accused. 3. It is averred in the complaint that on 11.06.2001, the accused has received a sum of Rs.3 lakhs from the complainant by way of executing a promissory note and on 12.06.2003, she has given a cheque in favour of the complainant for a sum of Rs.3,50,000/- and the same has been put into concerned bank, but the concerned bank has returned the same stating 'funds insufficient' and subsequently, a legal notice has been issued and the same has not been claimed by the accused. Under the said circumstances, the present complaint has been filed for getting the relief sought therein. 4. The trial Court, after considering the available evidence on record, has allowed the complaint and thereby found the accused guilty under Section 138 of the Negotiable Instruments Act, 1881. Against the conviction and sentence passed by the trial Court, the accused, as appellant, has preferred Criminal Appeal No.517 of 2004 on the file of the first appellate Court. 5. The first appellate Court, after hearing arguments of both sides and upon re-appraising the available eidence on record, has allowed the appeal and thereby set aside the conviction and sentence passed by the trial Court in Calendar Case No.777 of 2003. Against the order of acquittal, the present criminal appeal has been filed, at the instance of the complainant, as appellant. 6. Against the order of acquittal, the present criminal appeal has been filed, at the instance of the complainant, as appellant. 6. The learned counsel appearing for the appellant has contended that on 11.6.2001, the accused has received a sum of Rs.3 lakhs from the complainant by way of debt and on the same day, she has executed a promissory note and subsequently, on 12.06.2003, she has given the cheque in question for a sum of Rs.3,50,000/- and the same has been put into concerned bank, but the concerned bank has returned the same stating 'funds insufficient' and subsequently a legal notice has been issued and the same has not been claimed by the accused. Under the said circumstances, the present complaint has been filed and the trial Court, after considering the available evidence on record, has rightly found the accused guilty under Section 138 of the Negotiable Instruments Act, 1881. But, the first appellate Court has erroneously fixed burden upon the complainant for non-examination of certain witnesses and therefore, the finding given by the first appellate Court is not proper. Under the said circumstances, the order of acquittal passed by the first appellate Court is liable to be set aside. 7. The learned counsel appearing for the respondent/accused has contended that the respondent/accused has given a cheque as well as a pro-note in favour of one Rathinam and in between the accused and the said Rathinam, a legal proceeding has been pending and further, in Ex.P1, pro-note, one Vijayakumar is found place as a witness and he has not been examined on the side of the complainant and the trial Court, without considering lack of evidence on the side of the complainant, has erroneously allowed the complaint, but the first appellate Court has rightly dismissed the same and thereby, the order passed by the first appellate Court is not liable to be set aside. 8. For considering the rival submissions made on either side, the Court has to look into the averments made in the complaint as well as the documents filed on the side of the complainant. 9. In the complaint it has been specifically stated that on 11.6.2001, the accused has received a sum of Rs.3 lakhs by way executing a promissory note. The said promissory note has been marked as Ex.P1, wherein, one Vijayakumar has put his signature as a witness. 9. In the complaint it has been specifically stated that on 11.6.2001, the accused has received a sum of Rs.3 lakhs by way executing a promissory note. The said promissory note has been marked as Ex.P1, wherein, one Vijayakumar has put his signature as a witness. But, as rightly pointed out on the side of the respondent/accused, the said Vijayakumar has not been examined for the purpose of proving the due execution as well as passing of consideration. 10. The definite stand taken on the side of the respondent/accused is that she has given a promissory note as well as a cheque in favour of one Rathinam and a legal proceeding is pending in between the said Rathinam and accused. But for the scrutiny of the Court, no such document has been filed on the side of the respondent/accused. 11. It has already been pointed out that on the side of the complainant, the said Vijayakumar has not been examined for the purpose of proving the due execution as well as passing of consideration of the promissory note, mentioned in the complaint. Likewise, for the purpose of proving the defence, no evidence is available on the side of the respondent/accused. Under the said circumstances and also in the interest of justice, this Court is of the view to set aside the orders passed by the Courts below and to remit the matter to the file of the Court below. In fine, this criminal appeal is allowed. The orders passed by the Courts below are set aside and the Calendar Case No.777 of 2003 is remitted to the file of the Judicial Magistrate No.2, Coimbatore. In the trial Court, the appellant/complainant is directed to examine the witnesses found in Ex.P1. Likewise, the respondent/accused is also directed to produce either oral or documentary evidence in support of the defence taken on her side. The trial Court is directed to dispose of the Calendar Case No.777 of 2003 before the end of March 2016 and report the same to the Registry without fail. The Registry is strictly directed to send all the records forthwith.