IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.2.2008 CORAM THE HONOURABLE MR.JUSTICE P.R. SHIVAKUMAR CRIMINAL APPEAL No. 1396 of 2002 A. Muthusamy ..Appellant Vs. G. Ayyappan ..Respondent Prayer: Criminal Appeal against the order of acquittal in C.C. No. 177/2000 dated 7.5.2001 on the file of the Judicial Magistrate No.III, Erode. For Appellant :: Mr.M.M. Sundresh For Respondent :: Mr.S.A. Syed Haroon J U D G M E N T This appeal arises out of the judgment of the learned Judicial Magistrate No.III, Erode acquitting the respondent herein, who stood the trial for an offence punishable under Section 138 r/w 142 of the Negotiable Instruments Act in C.C. No. 177/2000. The said case had been taken on file by the Trial Court based on a private complaint lodged by the appellant/complainant containing the following allegations: "On 20.3.2000, the respondent herein/accused borrowed a sum of Rs.2,50,000/- from the appellant/complainant for his urgent expenses and for the discharge of the said debt, the respondent/accused issued a cheque dated 20.4.2000 drawn on Canara Bank, Park Road, Erode for a sum of Rs.2,50,000/-. He also made a promise to pay interest @ 24% per annum. When the cheque was presented for collection on 22.4.2000, it was returned with the Banker's note "funds insufficient". Pursuant to the bouncing of the cheque, a lawyer's notice was issued to the respondent/accused on 3.5.2000. But, the registered cover containing the said notice was returned as "not claimed" on 13.5.2000. As the respondent/accused evaded service of notice, failed to issue any reply and did not make any payment for the amount covered under the bounced cheque, the complaint was lodged under Section 200 Cr.P.C. against the respondent/accused for the above said offence." 2. The complaint was taken on file as C.C. No. 177/2000 and process was issued. On receipt of process, the respondent/accused entered appearance and pleaded not guilty. In order to prove the case, the appellant/complainant, besides examining himself as P.W.1, examined the Manager of the Bank as P.W.2 and produced 7 documents as Exs-P1 to P7. After completion of evidence on the side of the appellant/complainant, the respondent/accused was questioned by the Trial Court under Section 313(1)(b) Cr.P.C. with regard to the incriminating materials found in the evidence adduced on the side of the appellant/complainant. The respondent/accused denied them to be false. It was his further submission during his examination under Section 313 Cr.P.C that he did not borrow any amount from the appellant/complainant; that the signature found in the cheque produced on the side of the appellant/complainant was not his and that the case had been foisted against him. No witness was examined and no document was marked on the side of the respondent/accused. 3. After hearing the arguments advanced on either side, the learned Judicial Magistrate No.III, Erode came to the conclusion that the charge under Section 138 r/w 142 of the Negotiable Instruments Act was not proved beyond reasonable doubt. In the light of the admission made by P.W.2 that the signature found in the specimen form available with the Bank and the one found in the cheque differ from each other, the learned Trial Judge held that the appellant/complainant failed to prove that the cheque was issued by the respondent/accused. Based on the above said finding, the learned Judicial Magistrate No.III, Erode, dismissed the complaint by his judgment dated 7.5.2001 and acquitted the accused. Hence, the appellant/complainant has approached this Court by way of the present appeal. 4. Mr.M.M. Sundresh, learned counsel advancing arguments on behalf of the appellant, contended that the appellant/complainant had proved all the ingredients necessary for proving the charge under Section 138 r/w 142 of the Negotiable Instruments Act and that the mere fact that an answer favourable to the accused, to the effect that the signature of the respondent/accused found in the specimen form available with the Bank differed from the one found in the cheque, was elicited from Bank Manager (P.W.2) was not enough to come to the conclusion that the commission of offence under Section 138 r/w 142 of the Negotiable Instruments Act was proved beyond reasonable doubt. The learned counsel also contended that the very fact that the respondent/accused failed to issue any reply should have been taken as a circumstance giving rise to an adverse inference against the accused. According to the learned counsel, viewed from any angle, the judgment of the Trial Court acquitting the respondent/accused should be held infirm and the same must be undone by this Court in exercise of its appellate powers. 5. This Court also heard the submissions made on behalf of the respondent/accused and paid its anxious consideration to the submissions made on either side. The materials available on record were also perused. 6. The present appeal has been presented against the judgment of acquittal pronounced by the learned Judicial Magistrate No.III, Erode in C.C. No. 177/2000, which was taken on file based on a private complaint filed by the appellant/complainant herein against the respondent for an offence punishable under Section 138 r/w 142 of the Negotiable Instruments Act. Of course, it is true that the appellant figured as P.W.1 and deposed in line with the averments found in the complaint. He also examined the Bank Manager as P.w.2 to show that the cheque allegedly issued by the respondent/accused was returned by the Bank for the reason that there was insufficiency of funds in the account on which the cheque was drawn. The dishonoured cheque was produced and marked as Ex-P1. The memo of the bank returning the cheque was marked as Ex-P2. The extract of the cheque return register certified by the Bank was produced and marked as Ex-P5. The statement of accounts relating to the account on which the cheque was drawn was produced and marked as Ex-P6. If these documents alone are taken into account, then there will be no difficulty in accepting the contention of the learned counsel for the appellant. The further contention of the learned counsel for the appellant/complainant that the fact that the respondent/accused did not issue any reply to the statutory notice issued would also have substance in it provided such a notice was served upon the respondent/accused. Unfortunately, in this case, the said notice was not actually served on the respondent/accused. It is not the case of the appellant that the respondent/accused refused to receive the notice when it was tendered by the postman. On the other hand, from Ex-P4, returned cover, it is obvious that it was returned as "not claimed", which leads to the inference that the postman would have gone to the respondent/accused and passed on the information regarding the receipt of the registered cover to anybody present there in the absence of the respondent/accused at the time of his visit. But, the same will not be enough to hold that the notice was properly served on the respondent/accused or the information regarding the receipt of such notice had actually reached him. The appellant/complainant has not chosen to examine the postman to prove that a written intimation was given to the respondent/accused regarding the receipt of the registered cover and to show how many visits were made by the postman to the place of residence/business of the respondent/accused. Under such circumstances, the contention of the learned counsel for the appellant/complainant that adverse inference should be drawn against the respondent/accused due to his failure to issue reply notice cannot be accepted and the same has got to be rejected as untenable. 7. The respondent/accused has denied the issuance of Ex-P1 cheque. He also denied the signature found in the said cheque. A suggestion was put to the prosecution witnesses to the effect that the cheque was not issued by the respondent/acused and that the signature found therein was not that of the respondent/accused. Though the said suggestion was denied by the complainant when he was examined as P.W.1, the Bank Manager, examined as P.W.2, has candidly admitted that the signature found in Ex-P1- cheque and the one found in the specimen form differ from each other. When such an admission has been made by a witness examined on the side of the appellant/complainant, it is the duty of the complainant to see that the effect of such evidence is nullified by adducing further evidence and proving that the signature found in Ex-P1 is that of the respondent/accused. But, the appellant/complainant has not chosen to do so. The irony in this case is, had not the appellant/complainant chosen to examine the Bank Officer on his side, the burden would have been cast upon the respondent/accused to prove that the signature found in Ex-P1 was not that of his and that there was difference between the signature found in the cheque and the specimen signature available with the Bank. By examining the Bank Manager, the appellant/complainant has invited trouble whereby he had paved the way for eliciting an admission to the effect that the signature found in the disputed cheque differs from the specimen signature available with the Bank. Since such an admission was elicited from P.W.2, there was no necessity for the accused to examine any further witness to show the difference in the signature and thereby prove that the signature found in Ex-P1 was not that of his. Therefore, this Court is not in a position to find any defect or infirmity in the conclusion arrived at by the learned Judicial Magistrate No.III, Erode to the effect that the signature found in Ex-P1 was not that of the respondent/accused and that the charge made against the respondent/accused was not proved beyond reasonable doubt. 8. Yet another aspect, which was also dealt with by the learned Judicial Magistrate, but not elaborately, deserves to be mentioned here. It is the case of the appellant/complainant, as could be seen from the complaint, that a sum of Rs.2,50,000/- was lent on 20.3.2000 and a post-dated cheque bearing the date 20.4.2000 for the said sum was issued by the respondent/accused. But, during cross-examination, P.W.1 has stated that the respondent/accused asked him to lend a sum of Rs.2,00,000/- for getting a job; that the said request was made by the respondent/accused in February and that in March, he paid the said amount. The relevant portion of the evidence of P.W.1reads as follows: @vjphp ntiyapy; nrUtjw;F U:/2 yl;rk; nfl;lhh;/ mjdhy; bfhLj;njd;/ gpg;uthpapy; nfl;lhh;/ khh;r;rpy; gzk; bfhLj;njd;/@ When the respondent/accused wanted only a sum of Rs.2,00,000/- as loan, how the appellant/complainant happened to lend a sum of Rs.2,50,000/- has not been explained at all. This vital aspect, in conjunction with the above said failure on the part of the appellant/complainant to prove the signature found in Ex-P1 to be that of the respondent/accused, will clearly lead to the inevitable conclusion that the appellant/complainant has utterly filed to prove his case and that the Trial Court has not committed any error, either in law or on fact, in holding that the charge against the respondent/accused was not proved beyond reasonable doubt and that the respondent/accused was entitled to be acquitted. P.R. SHIVAKUMAR,J. nv 9. For all the reasons stated above, this Court is of the opinion that there is no infirmity in the judgment under challenge, that there is no merit in the appeal and that the same deserves to be dismissed. Accordingly, this criminal appeal No.1396 of 2002 is dismissed. 4.2.2008 nv To The Judicial Magistrate No.III, Erode. Crl.A. No. 1396 of2002