JUDGMENT : G.K.ILANTHIRAIYAN, J. A.S.No.477 of 2011:- 1.This appeal suit is directed as against the judgment and decree passed in O.S.No.481 of 2004 dated 29.11.2008 on the file of the learned Additional District and Sessions Judge, Fast Track Court-III, Coimbatore, thereby allowing the suit and directed the defendants to pay a sum of Rs.7,25,468/- with interest at the rate of 12% per annum from the filing of the suit till the date of judgment and thereafter at the rate of 9% till realisation in favour of the plaintiff. 2. The respondent is the plaintiff and the appellants are the defendants 5 & 1 to 4 respectively in the suit. For the sake of convenience, the parties are referred to as per their ranking in the trial Court. 3. The case of the plaintiff is that it is a company that is involved in manufacturing knitted garments, dyeing, compacting and exporting the same to abroad. The foreign buyers had been entrusting their requirements of knitted garments with the plaintiff and they are having continuous export orders. Therefore, the plaintiff was looking for a suitable company having required infrastructure facilities for manufacturing knitted fabrics into garments as per the specification and requirement of the plaintiff for carrying out the orders placed by the buyers. The first defendant is a partnership firm and the defendants 2 to 4 are its partners. The fifth defendant is the sole proprietary concern but they are joint business associates and are doing business jointly. 3.1. While being so, the defendants approached the plaintiff and stated about their infrastructure facility for manufacturing knitted garments along with bank facility. Therefore, the plaintiff placed orders with them vide orders by order Nos.9102 & 9103 dated 12.11.1999 in order to export the same to abroad within a stipulated time and the defendants agreed to do the same. In the previous business transaction, the plaintiff owed a sum of Rs.17,25,293/- to the fifth defendant. Therefore, the plaintiff issued cheque for the said sum towards full discharge of its liability. In the mean time, the plaintiff entrusted orders to the defendants jointly and the fifth defendant also agreed to carry out the order as placed by the plaintiff. 3.2. Thereafter, the plaintiff had purchased yarn from M/s.Chamber Cotton Fabrics, Tirupur, for a sum of Rs.9,69,450/- and delivered the same to the fifth defendant. In the mean time, the plaintiff entrusted orders to the defendants jointly and the fifth defendant also agreed to carry out the order as placed by the plaintiff. 3.2. Thereafter, the plaintiff had purchased yarn from M/s.Chamber Cotton Fabrics, Tirupur, for a sum of Rs.9,69,450/- and delivered the same to the fifth defendant. The plaintiff had also purchased Melange yarn from Tiruppur Cotton Spinning and Weaving Mills for Rs.4,44,015/- and delivered the same to the first defendant, as per the instruction given by the fifth defendant. The plaintiff had also purchased Melange yarn from Sulochana Cotton and Spinning Mills, Tiruppur to the tune of Rs.1,72,470/- and directly delivered the same to the first defendant. The fifth defendant agreed that the cost of the yarn to the tune of Rs.15,85,935/- shall be adjusted out of the cheque which was issued in favour of the fifth defendant to the tune of Rs. 17,25,293/-. After adjusting the said amount by supplying of yarn by the plaintiff, there was a due from the plaintiff to the tune of Rs.1,39,358/- to the fifth defendant. 3.3. Further, the defendants 1 to 4 have entrusted 5.066.200 Kgs of grey fabric with the plaintiff for dyeing and compacting the same at the agreed rates. Subsequently, 1460 Kgs of yarn was also entrusted with the plaintiff for knitting, dyeing and compacting at the agreed rates. Further, the defendants entrusted 2500 Kgs of yarn for knitting, dyeing and compacting on 03.12.1999 & 04.12.1999. Once again on 13.12.1999, the defendants entrusted 1,850 Kgs of yarn for knitting, dyeing and compacting on the aforesaid dates. Therefore, the defendants were in due towards knitting, dyeing and compacting charges to the tune of Rs.8,64,826.68 as on 31.01.2000, as per the credit invoices and ledger account of the plaintiff. Thereafter, the defendants failed to deliver the entire knitted garments entrusted to them as per the order Nos.9102 and 9103 for exporting the same to foreign buyers within the stipulated time. Therefore, the plaintiff suffered loss. Hence, the defendants are liable to pay a sum of Rs.8,17,452/- as damages. After deducting the amount payable by the plaintiff from the amount due from the defendants, the plaintiff filed suit for recovery of Rs.17,58,426.68. 4. Therefore, the plaintiff suffered loss. Hence, the defendants are liable to pay a sum of Rs.8,17,452/- as damages. After deducting the amount payable by the plaintiff from the amount due from the defendants, the plaintiff filed suit for recovery of Rs.17,58,426.68. 4. Per contra, the fourth defendant filed written statement on behalf of the defendants 1 to 4 stating that defendants 2 to 4 are the partners of the first defendant partnership firm and the fifth defendant is a proprietary concern. But they are not joint business associates and are not doing business jointly. They were not entrusted with any order and they are not liable to pay any amount. They had no knowledge about the liability of the fifth defendant and discharge of the liability. In fact the defendants issued detailed reply notice dated 02.03.2000 for the notice issued by the plaintiff dated 15.02.2000 setting out the real facts. They had entrusted dyeing and compacting of fabric as well as knitting of yarn programme to the plaintiff. Under invoice No.10 dated 20.01.1999, they had supplied 100 cotton knitted fabric and by another invoice dated 27.12.1999, had supplied dyed fabric to the plaintiff for the value of Rs.3,77,305.80/- and Rs.37,072/- respectively, for which the plaintiff also issued cheque dated 10.03.1999 in favour of the first defendant along with the communication dated 20.02.1999. However, it was requested not to present the said cheque and they assured to pay by cash. 4.1. Further, the plaintiff had not adhered to the delivery schedule and failed to deliver all colours of fabric proportionately and committed breach which resulted in substantial hardship and loss to the defendants. The plaintiff had also committed several defects in knitting and processing of fabrics such as shade variation, colour bleeding due to poor fastens holes, holes in knitted fabrics etc. Because of the defective fabrics, the defendants were constrained to return the fabric for rectification. Thus the plaintiff had delayed the delivery of fabric to the defendants and also failed to deliver 250 kg of fabric of the colour charcoal heather. They kept on informing to the plaintiff that they are facing severe quality problems due to inconsistency in the finishing of dyed fabric apart from the delayed delivery. Though the plaintiff agreed to compensate the loss, the plaintiff had committed breach of contract and cheated them. They kept on informing to the plaintiff that they are facing severe quality problems due to inconsistency in the finishing of dyed fabric apart from the delayed delivery. Though the plaintiff agreed to compensate the loss, the plaintiff had committed breach of contract and cheated them. The plaintiff also was due towards the supply of knitted and dyed fabrics. Therefore, the plaintiff has unnecessarily, without any jurisdiction and without any valid documentary evidence, implicated defendants 1 to 4 with false and frivolous allegations with a view to enjoy illegal gains. 5. Contra to the allegations made in the plaint, the fifth defendant filed separate written statement and stated that the plaintiff failed to produce any documentary evidence to substantiate the claim. The fifth defendant had never approached the plaintiff with the other defendants and never informed to entrust the orders. The fifth defendant never agreed to jointly execute and complete the work along with defendants 1 to 4. The fifth defendant never agreed to pay or adjust a sum of Rs.8,64,826.68/- out of the making charges for the order Nos.9102 and 9103. The liability under the Catholic Syrian Bank for a sum of Rs.17,25,295/- was not discharged by the plaintiff. There is no such arrangement between defendants 1 to 4 and the fifth defendant had never agreed to pay a sum of Rs.6,78,093/- or any other amount to the plaintiff. 5.1. The plaintiff fabricated the valuable security and entered an imaginary sum, committed material alternations and presented into service for illegal and unlawful enrichment. The alleged Canara Bank cheque does not carry any liability at all and the plaintiff has utilised the same for illegal gains with ulterior motives. The fifth defendant was not entrusted with the orders bearing Nos.9102 and 9103 dated 12.11.1999. Therefore, there is no contract between the fifth defendant and the plaintiff and as such, there is no question of breach of contract on the part of the fifth defendant. The cheque for a sum of Rs.17,25,295/- was not honoured and as such the plaintiff is facing prosecution for the offence punishable under Section 138 of NI Act in CC.No.171 of 2000 on the file of the Judicial Magistrate, Palladam. The cheque for a sum of Rs.17,25,295/- was not honoured and as such the plaintiff is facing prosecution for the offence punishable under Section 138 of NI Act in CC.No.171 of 2000 on the file of the Judicial Magistrate, Palladam. Simultaneously, the plaintiff also proceeded against the fifth defendant for the offence punishable under of NI Act on the strength of the cheque which was drawn on Canara Bank in CC.No.153 of 2001 on the file of the Judicial Magistrate, Palladam. Therefore, the entire suit is nothing but clear abuse of process of law. 6. On completion of the pleadings, the Trial Court framed the following issues: (i) Whether the plaintiff is entitled to the suit amount as prayed for? (ii) To what relief the plaintiff is entitled to? (iii) Whether the suit as framed is maintainable in law? 7. On the side of the plaintiff, PW1 was examined and Ex.A1 to Ex.A141 were marked. On the side of the defendants, DW1 and DW2 were examined and Ex.B1 to Ex.B35 were marked. On perusal of the oral and documentary evidences, the Trial Court partly allowed the suit and directed the defendants to jointly and severally pay a sum of Rs.7,25,468/- with interest at the rate of 12% per annum from the date of filing the suit. Aggrieved by the same, the present Appeal Suit was filed by the defendants. 8. The learned Senior Counsel appearing for the fifth defendant submits that the plaintiff is represented by its Managing Director. But the plaintiff failed to produce any document to show that it is represented by the Managing Director one P.T. Arasu. No document was filed to prove that P.T.Arasu was authorized to file a suit on behalf of the plaintiff. Therefore, the suit itself is not maintainable. He further submits that the plaintiff did not file any certified ledger book for the year 1999-2000. The plaintiff filed unauthorized and loose documents purported to be a ledger account relating to the fifth defendant for the period from 01.04.1999 to 03.02.2000. After 4 ½ years from the institution of the suit, the plaintiff produced fabricated ledger copy which is marked as Ex.A.122. The said documents which were marked by the plaintiff are not related to the fifth defendant and the same were the correspondence between the plaintiff and other parties. Therefore, the fifth defendant is in no way connected to those documents. 8.1. The said documents which were marked by the plaintiff are not related to the fifth defendant and the same were the correspondence between the plaintiff and other parties. Therefore, the fifth defendant is in no way connected to those documents. 8.1. The plaintiff attempted to connect this defendant by producing those documents by forging the signature of the fifth defendant as if it was communicated to the fifth defendant. Ex.A.3 is a fabricated forged document. It is alleged that an agreement between the plaintiff and the fourth defendant representing the first defendant was executed on 14.10.1999. However, the stamp paper was purchased only on 15.10.1999. Therefore, the execution of agreement dated 14.10.1999 is impossible and the document marked in Ex.A.3 is liable to be rejected. Further, the signature of the fifth defendant was also forged in the said document. 8.2. Further, the fifth defendant was no way connected with the defendants 1 to 4 herein. He was neither the Managing Director nor a partner of the first defendant. It is also proved by the bank manager’s evidence which was marked as Ex.A.139. He categorically admitted that the fifth defendant was not a partner of the first defendant firm. They never had done their business jointly. Further insofar as Ex.A.6, the letter which was marked as if it was issued by the fifth defendant is concerned, the fifth defendant is in no way connected with the document and his signature was forged and the letter pad of the fifth defendant was fabricated. 8.3. Similarly, Ex.A.8 & Ex.A.9 were also fabricated by the plaintiff for the purpose of the suit and it cannot be linked to the fifth defendant. Ex.A.115, which is a fax message, is also a fabricated one, since it has mentioned 12.02.2000 as Wednesday, whereas 12.02.2000 was a Saturday. Further Ex.A.116 is marked to show that all the defendants were jointly doing business. Ex.A.116 is dated 30.02.2000. There is no 30 th day in the month of February even in a leap year. Therefore, it clearly shows the forgery employed by the plaintiff by fabrication and forging the signature of the fifth defendant. Further the plaintiff also failed to produce even a single piece of evidence to prove the delivery of goods under the order No.9102 & 9103 or any acknowledgement of such delivery. Therefore, it clearly shows the forgery employed by the plaintiff by fabrication and forging the signature of the fifth defendant. Further the plaintiff also failed to produce even a single piece of evidence to prove the delivery of goods under the order No.9102 & 9103 or any acknowledgement of such delivery. When there was no contract for supply of garments, the question of non supply will not arise and no damage can be measured. 8.4. That apart, the plaintiff forged the signature of the fifth defendant and initiated proceeding under Section 138 of the Negotiable Instruments Act in C.C.No.153 of 2001. In fact, the fifth defendant filed an application to get expert opinion with regard to the disputed signature. As per the report, it was found that the signature of the fifth defendant is a forged one. Further more, the plaintiff did not even appear before the trial Court and as such the complaint lodged as against the fifth defendant was dismissed. He further submitted that the plaintiff issued cheque for a sum of Rs.17,25,293/- in favour of the fifth defendant and same was presented for collection. However it was returned dishonoured for the reasons “funds insufficient”. On instruction of the plaintiff, the fifth defendant once again re-presented the cheque and on the second time it was returned dishonoured for the reason “stop payment”. After causing statutory notice, the fifth defendant initiated proceedings as against the plaintiff for the offence punishable under of the Negotiable Instruments Act. On receipt of the statutory notice, the plaintiff issued reply notice which was marked as Ex.B.4. In the reply notice, the plaintiff stated that they purchased yarn from M/s.Chamber Cotton Fabric to the goods valued to tune of Rs.9,65,450/- and M/s.Tiruppur Cotton Mills to the tune of Rs.6,16,485/- on credit basis between 03.12.1999 to 25.12.1999. Further it was stated that as directed by the fifth defendant, it was delivered directly to the first defendant. However, there are no records to show to when the plaintiff was called upon to supply the goods to the defendants 1 to 4. The orders dated 12.11.1999 was issued much prior to the issuance of cheque by the plaintiff. Further if at all, any money transaction was pending between the plaintiff and the fifth defendant, it would have been referred immediately after the dishonouring of the cheque. 8.5. The orders dated 12.11.1999 was issued much prior to the issuance of cheque by the plaintiff. Further if at all, any money transaction was pending between the plaintiff and the fifth defendant, it would have been referred immediately after the dishonouring of the cheque. 8.5. In fact, the cheque was presented on 04.11.1999 and it was returned for the reason “fund insufficient”. Once again, the plaintiff directed the fifth defendant to represent the same in other account. Thereafter, the cheque was returned dishonoured for the reasons “payment stopped”. Initially the cheque was presented on 04.11.1999 and the transaction referred by the plaintiff with the fifth defendant was on 12.11.1999. Further the plaintiff had transactions with the defendants 1 to 4 during the period 23.12.1999 to 29.12.1999. If at all any transactions were pending between the plaintiff and the defendants, the plaintiff would have in the first place sought for return of the cheque and would not have stopped payment without assigning any reason. In fact, the plaintiff also failed to disclose why they issued stop payment of the cheque. 8.6. Though the plaintiff specifically stated that there was delivery of goods by M/s. Chamber Cotton Fabric to the fifth defendant, the plaintiff did not even examine that person to prove the same. In order to connect the defendants 1 to 4 and the fifth defendant, the plaintiff failed to produce any piece of evidence. The defendant 2 to 4 are the partners of the first defendant partnership firm and the fifth defendant is the proprietary concern. Further there is absolutely no records to show that the fifth defendant directed the plaintiff to supply goods to the first defendant. 8.7. He further submits that the fifth defendant had deposed as D.W.2 and he was cross examined by the plaintiff at length on various dates. In fact, the plaintiff was provided sufficient opportunity to cross examine D.W.2 and after cross examination, the defence witness was closed. Thereafter, the suit was posted for arguments. On several occasions, the plaintiff took time for arguments. After the period of several months, the plaintiff filed an application to re-open the DW.2 witness in I.A.No.109 of 2006 and another application in I.A.No.110 of 2006 for sending certain documents to the forensic laboratory to obtain hand writing expert’s opinion. Both the applications were dismissed for default and thereafter, they filed restoration petition. After the period of several months, the plaintiff filed an application to re-open the DW.2 witness in I.A.No.109 of 2006 and another application in I.A.No.110 of 2006 for sending certain documents to the forensic laboratory to obtain hand writing expert’s opinion. Both the applications were dismissed for default and thereafter, they filed restoration petition. After allowing the restoration petitioner, once again those applications were dismissed for default. Once again, they filed restoration petition and after allowing the restoration petition, the trial Court allowed the reopen petition and dismissed the petition for sending the documents to obtained hand writing expert’s opinion. However, the cross examination of D.W.2 would arise only after allowing the application to send certain documents for hand writing expert’s opinion. Whereas the hand writing expert’s opinion application was dismissed and no purpose would serve in allowing the application to re-open the evidence of D.W.2. Therefore, D.W.2 was not present for further cross-examination. But the Trial Court eschewed the evidence of D.W.2 for the reason that he was not present for further cross examination even after allowing the application to re-open the evidence of D.W.2. The trial Court also did not consider any of the documents which were marked through D.W.2. In fact, the documents marked through D.W.2 were vital to the suit but the same were not considered by the Trial Court. Hence, the suit itself is liable to be dismissed. 9. The learned counsel appearing for the defendants 1 to 4 submits that the defendants 1 to 4 never had joint business with the fifth defendant. The plaintiff failed to produce any piece of evidence to show that the defendants 1 to 4 and the fifth defendant had carried out their business jointly with the plaintiff. Without any iota of evidence, the Trial Court concluded that the yarn alleged to have been purchased by the plaintiff was supplied to the first defendant by the cotton mills directly as per the instruction of the fifth defendant. In fact, no one was examined from the cotton mills, who had allegedly supplied yarn to the first defendant. Further, the trial Court failed to consider the evidence of D.W.2 and the documents which were marked through D.W.2 ie., Ex.D.25 to Ex.D.35. There is absolutely no reference about those documents anywhere in the judgment. In fact, no one was examined from the cotton mills, who had allegedly supplied yarn to the first defendant. Further, the trial Court failed to consider the evidence of D.W.2 and the documents which were marked through D.W.2 ie., Ex.D.25 to Ex.D.35. There is absolutely no reference about those documents anywhere in the judgment. Further the Trial Court passed a decree as against the defendants 1 to 4 as if they failed to appear and they were set ex-parte. However, the fourth defendant had deposed as D.W.1 and marked documents in Ex.B.1 to Ex.B.24. 9.1. He further submitted that the first defendant had entrusted job work of dyeing the fabrics and supplied the fabrics to the plaintiff. However, the same were not properly processed and were not delivered to the first defendant by the plaintiff. Therefore, the first defendant had written a letter dated 07.01.1999. However it was refused to be received by the plaintiff and the returned letter was marked as Ex.B.12. Once again, the fourth defendant had sent a fax message on 10.12.1999 and the same was marked as Ex.B.17. On receipt of the same, the plaintiff also sent reply fax and the same was also marked as Ex.D.18, wherein the plaintiff categorically admitted his liability to the tune of Rs.3,77,305.80 and he assured that he will arrange for payment. Once again the first defendant sent communication dated 19.01.2000 thereby stating that the plaintiff had caused loss to the first defendant to the tune of Rs.6,00,000/-. In view of the judgment passed in Crl.A.No.282 of 2002 on the file of the I Additional Sessions Judge, Coimbatore, the Civil Court held that the defendants 1 to 4 and the fifth defendant are joint business associates. The said judgment has nothing to do with the defendants 1 to 4 since they are not parties to the said proceedings initiated under Section 138 of the NI Act by the fifth defendant as against the plaintiff. Therefore, the trial Court ought not to have decreed the suit and it is liable to be dismissed. 10. The learned Senior Counsel appearing for the plaintiff submitted that in order to prove the case, the plaintiff examined himself as P.W.1 and marked documents in Ex.A.1 to Ex.A.141. Therefore, the trial Court ought not to have decreed the suit and it is liable to be dismissed. 10. The learned Senior Counsel appearing for the plaintiff submitted that in order to prove the case, the plaintiff examined himself as P.W.1 and marked documents in Ex.A.1 to Ex.A.141. After considering the oral and documentary evidences, the Civil Court rightly decreed the suit in favour of the plaintiff and the present Appeal Suit is liable to be dismissed. Hence he prayed for dismissal of the Appeal Suit. Crl.A.No.825 of 2004 :- 11. This appeal has been preferred as against the judgment passed in Crl.A.282 of 2002 on the file of the learned I Additional Session Judge, Coimbatore, thereby acquitting the accused by reversing the judgment passed by the Trial Court in C.C.No.171 of 2001 on the file of the learned Judicial Magistrate, Palladam, thereby convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as “the NI Act”). The appellant/complainant is the fifth defendant and the respondent/accused is the plaintiff in the suit in O.S.No.481 of 2004. 12. The respondent is the accused in the complaint lodged by the appellant alleging that the accused owed to pay towards purchase of knitted cloths to the tune of Rs.27,57,631.32 and also towards selling of dyed cloths to the tune of Rs.1,45,744.60 as on 10.09.1999. In course of partial settlement, the accused paid a sum of Rs.10,00,000/- by way of cheque and the same was honoured. For the balance amount, the accused issued cheque dated 26.10.1999 to the tune of Rs.17,25,293/-. It was presented for collection on 04.11.1999 and the same was returned dishonoured for the reason “funds insufficient”. Once again on the instruction of the accused, it was re-presented for collection on 18.02.2000. Once again it was returned dishonoured for the reason “payment stopped by the drawer”. It was informed to the accused by the statutory notice dated 03.03.2000. On receipt of the same, the accused issued reply notice and the second and third accused refused to receive the statutory notice issued by the complainant. Hence the complaniant lodged complaint and on receipt of the said compliant, the Trial Court had taken cognizance in C.C.No.171 of 2001 for the offence punishable under Section 138 of NI Act. 13. On receipt of the same, the accused issued reply notice and the second and third accused refused to receive the statutory notice issued by the complainant. Hence the complaniant lodged complaint and on receipt of the said compliant, the Trial Court had taken cognizance in C.C.No.171 of 2001 for the offence punishable under Section 138 of NI Act. 13. In order to prove the complaint, the complainant had examined P.W.1 to P.W.3 and marked documents in Ex.P.1 to Ex.P.21. On the side of the accused D.W.1 to D.W.3 were examined and documents in Ex.D.1 to Ex.D.35 were marked. On perusal of the oral and documentary evidence, the Trial Court found the accused guilty for the offence punishable under Section 138 of the NI Act and sentenced him to undergo one year simple imprisonment and also awarded compensation to the tune of cheque amount in default to undergo three months simple imprisonment. Aggrieved by the same, the accused filed an appeal and the Appellate Court set aside the order of conviction and the sentence imposed by the Trial Court and acquitted the accused. Hence, the present Criminal Appeal as against the order of acquittal. 14. The learned counsel appearing for the complainant submits that the accused issued cheque for the existing liability on 26.10.1999. The complainant had deposed as P.W.1 and affirmed that he has two proprietorship concerns viz., Arizona Exports and Siranjeevi Factions. Therefore, the Trial Court rightly held that the complainant is not a partner of M/s.Aarias Knit Faab and the accused failed to establish the adjustment of the amount. The complainant denied the execution of the very agreement dated 14.10.1999 since, the accused altered the dated as 14.10.1999. The agreement was said to be signed on 14.10.1999 and the stamp paper was purchased on 15.10.1999. In fact, the accused himself admitted in the cross examination that the stamp paper was purchased on 15.10.1999 and subsequently, it was corrected as 14.10.1999. Therefore, in order to establish the proceeding initiated under Section 138 of the NI Act and also to maintain the suit, the said agreement dated 14.10.1999 was fabricated by forging the signature of the complainant. If the transaction is true, the accused would have sought for return of the cheque and would not have allowed it to be dishonoured on 04.11.1999 as “funds insufficient”. If the transaction is true, the accused would have sought for return of the cheque and would not have allowed it to be dishonoured on 04.11.1999 as “funds insufficient”. Further on the second re-presentation of the cheque that too on the instruction given by the accused, it was again returned dishonoured for the reason “stop payment by the drawer” on 18.02.2000. Therefore, the complainant discharged his initial burden of proof as contemplated under of the NI Act. 14.1 Further the accused never disputed the signature or the issuance of the cheque and failed to rebut the presumption. In fact, the accused, by the reply notice dated 13.03.2000, admitted his liability of Rs.17,25,293/- and pleaded that he would discharge his liability by supplying yarn and other services amounting to Rs.15,85,935/- to one Aarias Knit Faab in which the complainant is a partner. Therefore, the accused owed to pay a sum of Rs.1,39,358/-. This amount was also adjusted towards the damages claimed in the suit to the tune of Rs.8,17,452/- for breach of contract and mental agony suffered by the accused. In order to overcome the proceeding under of the NI Act, the accused filed vexatious suit in O.S.No.481 of 2004 as against the M/s.Aarias Knit Faab and it’s partners and the complainant. In fact, the said suit was filed after a period of three years from the initiation of the proceedings under of the NI Act as against the accused. 14.2. That apart, the accused filed another complaint in C.C.No.153 of 2001 under of the NI Act, as against the complainant by forging the signature of the complainant. The alleged cheque was sent to the forensic laboratory for the hand writing expert’s opinion. As per the opinion, the cheque was found to be a forged one. On receipt of the said expert’s opinion, the accused did not pursue the complaint and the same was dismissed. In fact, as against the forged signature, the complainant also filed a private compliant in C.C.No.196 of 2006 as against the accused and it was transferred to the file of the learned Chief Judicial Magistrate, Tirupur and it is pending. However, the Appellate Court without considering the above facts and circumstances and also the detailed judgment passed by the Trial Court, mechanically acquitted the accused. 15. However, the Appellate Court without considering the above facts and circumstances and also the detailed judgment passed by the Trial Court, mechanically acquitted the accused. 15. The learned Senior Counsel appearing for the accused submitted that in order to rebut the presumption, the accused had examined D.W.1 to D.W.3 and also marked documents in Ex.D.1 to Ex.D.35. After considering those oral and documentary evidences, the Appellate Court rightly acquitted the accused. In fact, the suit filed by the accused was also decreed in their favour. Therefore, the judgment impugned in this case doesn’t require any interference of this Court. 16. Heard the learned Counsel appearing on either side and also perused the materials placed before this Court. Findings in Appeal Suit:- 17. The plaintiff in the suit is the accused and the fifth defendant is the complainant in the complaint filed under Section 138 of the NI Act. The plaintiff filed suit for recovery of money to the tune of Rs.17,58,423.68/- as against the defendants 1 to 5 along with subsequent interest at the rate of 24% per annum from the date of suit till the realization of amount to the plaintiff. The specific case of the plaintiff is that the defendants 2 to 4 who are the partners of the first defendant and the fifth defendant are business associates and are doing business jointly. The plaintiff owed a sum of Rs.17,25,293/- to the fifth defendant. Therefore, the plaintiff issued a cheque for the said sum dated 26.10.1999. 18. While being so, the defendants approached the plaintiff stating that they will carry out all job works pertaining to the manufacturing of textile goods for plaintiff. Therefore, the plaintiff entrusted the work of manufacturing knitted garments, dyeing, compacting and exporting. At the request of the fifth defendant to carry out the said job work, the plaintiff had purchased yarn for the value of Rs.9,69,450/- from M/s. Chamber Cotton Fabrics, Tirupur, during 03.12.1999 to 09.12.1999 and entrusted the same with the fifth defendant. Further on the instruction of the fifth defendant, the plaintiff had also purchased Melange yarn from M/s.Tiruppur Cotton Spinning and Weaving Mills for a sum of Rs.4,44,015/- during the period between 25.12.1999 to 29.12.1999. It was directly entrusted with the first defendant as instructed by the fifth defendant. Further on the instruction of the fifth defendant, the plaintiff had also purchased Melange yarn from M/s.Tiruppur Cotton Spinning and Weaving Mills for a sum of Rs.4,44,015/- during the period between 25.12.1999 to 29.12.1999. It was directly entrusted with the first defendant as instructed by the fifth defendant. That apart, the plaintiff purchased yarn from Sulochana Cotton and Spinning Mills from 23.12.1999 to 29.12.1999 for the value of Rs.1,72,470/- and directly entrusted the same to the first defendant as instructed by the fifth defendant. Those goods were said to have been delivered by the mills directly to the defendants. Therefore, the yarn to the value of Rs.15,85,935/- was alleged to have been entrusted with the defendants. Thereafter, the fifth defendant also agreed to adjust the same towards the due of Rs. 17,25,293/-payable by the plaintiff to the fifth defendant. After adjusting the same, there was a balance amount of Rs.1,39,358/- due to the fifth defendant by the plaintiff. 19. Insofar as the claim as against the defendants 1 to 4 is concerned, the defendants had entrusted 5.066.200 kg of grey fabric with the plaintiff from 08.12.1999 to 08.01.2000 for dyeing and compacting at the agreed rate. Likewise, they also entrusted 1,400 kg of yarn with the plaintiff on 20.12.1999 and 2,500 kg on 03.12.1999 and 04.12.1999 and once again entrusted 1,850 kg from yarn to the plaintiff. Therefore, the defendants are in due of Rs.8,64,826.68 to the plaintiff for the charges of knitting, dyeing and compacting. However, the defendants refused to deliver the finished goods to the plaintiff due to which, the plaintiff had suffered loss and further lost its reputation with the international market from whom the plaintiff had taken orders. Therefore, the plaintiff claimed damages to the tune of Rs.8,17,452/- from the defendants. As per the agreement between the other defendants and the fifth defendant they agreed to pay the balance amount of Rs.6,78,093/- after adjusting the due of the plaintiff to the tune of Rs.17,25,293/-. The claim of the plaintiff was as follows :- 20. In order to prove the claim, the plaintiff had examined P.W.1 and marked documents in Ex.A.1 to 141. The claim of the plaintiff was as follows :- 20. In order to prove the claim, the plaintiff had examined P.W.1 and marked documents in Ex.A.1 to 141. Though the plaintiff specifically contended that the defendants 1 to 4 and the fifth defendant are joint business associates, on perusal of the entire records, the plaintiff failed to produce any piece of evidence to show that all the defendants are jointly doing business and they are joint business associates. Further in order to place orders in Order Nos.9102 & 9103 dated 12.11.1999, the defendants 1 to 4 never approached the plaintiff, since they did not associate themselves with any of the business dealings between the plaintiff and the fifth defendant. Therefore, the plaintiff failed to prove any transaction or order with the defendants 1 to 4. 21. The agreement dated 14.10.1999 was marked as Ex.A.3, in order to prove that the plaintiff had entered into agreement with the first defendant. On the strength of the agreement, the plaintiff placed two orders dated 12.09.1999 by the order Nos.9102 & 9103. On perusal of the Ex.A.3, it is revealed that it was dated 14.10.1999. However, the stamp paper was purchased on 15.10.1999. Therefore, on 14.10.1999, the agreement could not have been entered into by the plaintiff and the defendants 1 to 4 herein. In fact, the plaintiff categorically admitted that the date in the stamp paper was corrected as 14.10.1999 from 15.10.1999. The date on the stamp paper was mentioned as 15.10.1999 and subsequently, it was corrected as 14.10.1999. Once the stamp paper was issued on 15.10.1999, the same ought to have been entered in the ledger account maintained by the stamp vendor. The stamp vendors are accountable to each and every stamp paper that they sell and they have to maintain a proper ledger account in this regard. After closing such account at the end of the day, it cannot be corrected or altered easily. Therefore, the plaintiff failed to prove that Ex.A.3 was entered into, in order to place orders with the defendants 1 to 4 herein. 22. Further the specific case of the plaintiff is that the defendants 1 to 4 had entrusted grey fabric and yarn to the plaintiff for the purpose of dyeing and compacting to the value of Rs.8,64,826.38. However, in order to prove the same, the plaintiff did not produce any evidence. 22. Further the specific case of the plaintiff is that the defendants 1 to 4 had entrusted grey fabric and yarn to the plaintiff for the purpose of dyeing and compacting to the value of Rs.8,64,826.38. However, in order to prove the same, the plaintiff did not produce any evidence. Whereas, the plaintiff produced invoices as if they purchased the said grey fabric and yarn from M/s. Chamber Cotton Fabrics, Tiruppur Cotton Spinning and Weaving Mills and Sulochana Cotton and Spinning Mills. Further, there is no proof to show that those grey fabric and yarn were entrusted to the defendants 1 to 5 for knitting, dyeing and compacting. 23. On the other hand, the specific case of the defendants 1 to 4 is that they never received grey fabric or yarn from the mills as purchased by the plaintiff as directed by the fifth defendant. On receipt of the notice from the plaintiff dated 15.02.2000, which was marked as Ex.B.1, the defendants 1 to 4 replied by the reply notice dated 02.03.2000, which was marked as Ex.A.133 in which, the defendants categorically denied the allegation of receiving yarn from the mills. Further first defendant supplied fabrics to the plaintiff for the value of Rs.3,77,305.80 and Rs.37,072/- vide invoices dated 20.01.1999 and 27.12.1999 respectively. For the said supply, the plaintiff had also issued cheque for a sum of Rs.3,77,308.80. However, it was returned and the plaintiff requested to adjust the said amount by selling fabric for the said price. The defendants 1 to 4 further alleged that the plaintiff did not carry out the work properly and they delayed in delivering the fabric and as such they suffered loss. However, the Trial Court without any evidence concluded that the plaintiff placed orders to the defendants 1-4 and also supplied yarn and grey fabric and thereafter, the defendants 1 to 4 failed to deliver the garments to the plaintiff. 24. Further, there is no evidence to establish that the fifth defendant instructed the plaintiff to deliver the yarn and grey fabtic to the first defendant directly from the cotton mills. The plaintiff failed to examine any one person from the cotton mills from where, the plaintiff had purchased grey fabric and yarn and delivered the same directly from the mill to the defendants 1 to 4. The plaintiff failed to examine any one person from the cotton mills from where, the plaintiff had purchased grey fabric and yarn and delivered the same directly from the mill to the defendants 1 to 4. On behalf of the defendants, they examined D.W.2 viz., the fifth defendant and marked documents in Ex.B.25 to Ex.B.35. It is very unfortunate to see that the Trial Court did not even whisper about the evidence of D.W.2 and Ex.B.25 to Ex.B.35. There is no reference as to those documents any where in the judgment so as to accept or deny the same. One step ahead, the Trial Court held that the defendants 1 to 4 had failed to appear before the Trial Court and they were set ex-parte. However, as per the records, the fourth defendant had deposed as D.W.1 and marked documents in Ex.B.1 to Ex.B.24. He also filed written statement and it was mentioned in the judgment. In fact, the Trial Court categorically mentioned the marking of documents and evidence from D.W.1. Further D.W.1 was fully cross examined by the plaintiff. Even then, the Trial Court concluded that the defendants 1 to 4 failed to appear before the Trial Court and they were set ex-parte. 25. Further, on entrustment of job work of knitting, dyeing and compacting, the plaintiff did not deliver back the finished goods to the first defendant. Therefore, the fourth defendant had written a letter dated 07.01.1999 and the same was marked as Ex.B.12. However, it was returned by the plaintiff and as such the fourth defendant had sent a fax message on 10.12.1999 to the plaintiff and the same was marked as Ex.B.17. On receipt of the same, the plaintiff had sent reply fax message which was marked as Ex.B.19 in which, the plaintiff had categorically admitted its liability to the tune of Rs.3,77,305.80 and assured that the payment will be arranged. Further, the first defendant also sent another letter stating that the plaintiff had caused loss to the tune of Rs.6,00,000/-, which was marked as Ex.B.23. Therefore, the entire claim of the plaintiff as against the defendants 1 to 4 is not proved by any piece of evidence. 26. Insofar as the claim as against the fifth defendant is concerned, at the time of filing the suit, the plaintiff failed to produce any ledger account relating to the transactions between the plaintiff and the fifth defendant. Therefore, the entire claim of the plaintiff as against the defendants 1 to 4 is not proved by any piece of evidence. 26. Insofar as the claim as against the fifth defendant is concerned, at the time of filing the suit, the plaintiff failed to produce any ledger account relating to the transactions between the plaintiff and the fifth defendant. After a period of nearly five years, the plaintiff produced ledger copy, which was marked as Ex.A.122. Though the plaintiff had marked so many documents, those are not relating to the fifth defendant and they are the correspondents between the plaintiff and other parties. Some of the documents relating to the fifth defendant were also disputed by the fifth defendant as if, those documents were fabricated by forging the signature of the fifth defendant. 27. As discussed supra, the Ex.A.3 viz., the agreement between the plaintiff and the first defendant dated 14.10.1999 in which, the stamp paper was purchased on 15.10.1999 and as such, the agreement dated 14.10.1999 would not have been entered into between the plaintiff and the first defendant. Further in order to connect the fifth defendant with the defendants 1 to 4, there is absolutely no evidence produced by the plaintiff. In the bank manager’s evidence which was marked as Ex.A.139, he had clearly stated that the fifth defendant is neither a partner nor the Managing Director of the first defendant firm. Therefore, the fifth defendant has nothing to do with Ex.A.3, which was allegedly entered into between the plaintiff and the first defendant. 28. Some other documents which were marked by the plaintiff to link the fifth defendant were also fabricated by forging the signature of the fifth defendant. Those documents are Ex.A.6, Ex.A.8, Ex.A.9, Ex.A.115 and Ex.A.118. It is evident from the Ex.A.115 viz., the fax message sent by the plaintiff to the fifth defendant, that it is bogus as the date of the same was marked as 12.02.2000, Wednesday. Whereas, the date 12.02.2000 falls on Saturday. Therefore, the alleged fax message between the plaintiff and the fifth defendant is a fabricated one. On the other hand, the plaintiff admitted their liability towards the fifth defendant to the tune of Rs.17,25,293/-. In order to adjust the said liability, the plaintiff claimed damages from the fifth defendant due to non supply of garments to the tune of 17,18,452/-. Therefore, the alleged fax message between the plaintiff and the fifth defendant is a fabricated one. On the other hand, the plaintiff admitted their liability towards the fifth defendant to the tune of Rs.17,25,293/-. In order to adjust the said liability, the plaintiff claimed damages from the fifth defendant due to non supply of garments to the tune of 17,18,452/-. When the plaintiff failed to prove the supply of grey fabric and yarn, the non supply of garments does not arise. Therefore, the entire suit was initiated by the plaintiff in order to escape from the proceeding initiated for the offence punishable under Section 138 of the NI Act. 29. For the admitted liability, the plaintiff issued cheque for a sum of Rs.17,25,293/- and the same was presented for collection on 04.11.1999 itself. It was dishonoured for the reason funds insufficient. It was informed to the plaintiff and on instruction from the plaintiff, the cheque was re-presented for collection on 18.02.2000. However, once again it was returned for the reason payment stopped by the drawer. On receipt of the statutory notice, the plaintiff issued reply notice dated 13.03.2000, in which the plaintiff claimed that the plaintiff supplied goods from M/s. Chamber Cotton Fabrics for the goods valued to the tune of Rs.9,65,450/-, and also from M/s.Tiruppur Cotton Mills Ltd., to the tune of Rs.6,16,485/- on credit basis on various dates. All the above purchases were made between 03.12.1999 to 25.12.1999. If at all the goods were supplied to the first defendant as directed by the fifth defendant, the plaintiff would have mentioned the same in the reply notice. But there is no whisper about the date on which, the plaintiff called to supply the grey fabric and yarn to the first defendant. 30. Further in the same notice dated 13.03.2000, the plaintiff alleged that on 12.11.1999 viz., much prior to the supply of the yarn by the plaintiff, the fifth defendant had undertaken to deliver 41,760 pieces of men’s crew neck and Y neck double rib at neck and cuff at the rate of Rs.55/- per piece on or before 15.01.2000. On account of the non supply, the plaintiff claimed that the plaintiff suffered business loss to the tune of Rs. 8,17,452/-. On account of the non supply, the plaintiff claimed that the plaintiff suffered business loss to the tune of Rs. 8,17,452/-. As per the communication dated 13.03.2000, while issuance of cheque, the plaintiff categorically stated that the amounts were paid in full and final settlement in respect of the fifth defendant. If at all there was any pending transaction between the plaintiff and the fifth defendant, the plaintiff would have immediately informed about the same in the reply notice to the statutory notice issued by the fifth defendant for dishonour of cheque. 31. Further it is also curious to note that, the cheque was dishonored on 04.11.1999. The transactions referred by the plaintiff with the fifth defendant was on 12.11.1999. The transactions between the plaintiff and the first defendant was said to be done on 23.11.1999. If the subsequent transactions are true, the plaintiff would have sought for return of cheque and would not have stopped the payment without assigning any reason. In fact, during the presentation, the cheque was returned for the reason “funds insufficient”. Only on the second re- presentation of the cheque that too on the request of the plaintiff, it was returned for the reason “stopped payment” issued by the drawer of the cheque. In order to prove the claim as against the fifth defendant, the plaintiff failed to examine the persons from whom yarn was delivered to the fifth defendant viz., M/s. Chambers Cotton Fabrics, Tiruppur. 32. Insofar as the fabrication or forging of signature of the fifth defendant is concerned, the fifth defendant filed complaint as against the plaintiff in C.C.No.196 of 2006 for forgery. Therefore, the plaintiff had deliberately created fake documents to deny his liability by producing fabricated documents. On perusal of the records, it is also revealed that the fifth defendant was examined as D.W.2. He categorically deposed and he was fully cross examined by the plaintiff. Thereafter, both sides evidences were closed and the suit was posted for argument. In fact, for arguments it was repeatedly adjourned on the request of the plaintiff. After a period of several months and also after completion of arguments on the side of the defence and after submitting written arguments, the plaintiff filed applications in I.A.Nos. Thereafter, both sides evidences were closed and the suit was posted for argument. In fact, for arguments it was repeatedly adjourned on the request of the plaintiff. After a period of several months and also after completion of arguments on the side of the defence and after submitting written arguments, the plaintiff filed applications in I.A.Nos. 109 of 2006 & 110 of 2006 for reopening the evidence of D.W.2 and to send the document, for comparing signature found in Ex.A.3 with the admitted signature of the fifth defendant, to the forensic science laboratory. Both the applications were pending for years together and finally both were dismissed for default. 33. Thereafter, the plaintiff filed petitions to restore both the applications. Even after restoration of the same, once again both the applications were dismissed for default. On the second occassion, the plaintiff filed applications to restore the same and both were allowed. After restoration, the trial Court dismissed the application in I.A.No.110 of 2006 for sending the documents for hand writing expert’s opinion and allowed the application in I.A.No.109 of 2006 to reopen the evidence of D.W.2. 34. It is curious to note that, the plaintiff filed application to reopen the evidence of D.W.2 only after filing an application seeking a report from the hand writing expert. When the Trial Court dismissed the application in I.A.No.110 of 2006, which was filed seeking hand writing expert’s opinion over the disputed signature of the fifth defendant found in Ex.A.3 by comparing it with his admitted signature, the question of reopening the evidence of D.W.2 for further examination would not arise. However, the Trial Court went one step ahead and eschewed the evidence of D.W.2 for the reason that D.W.2 did not appear for further examination. The Trial Court ought not to have eschewed the evidence of D.W.2, since the Trial Court dismissed the application in I.A.No.110 of 2006 seeking hand writing expert’s opinion from the forensic laboratory on the signature of the fifth defendant found in Ex.A.3. Therefore, the question of reopening the evidence of D.W.2 does not arise. The Trial Court ought not to have simply eschewed the evidence of D.W.2 and the documents which were marked through D.W.2 as Ex.B.25 to Ex.B. 35. 35. Therefore, the question of reopening the evidence of D.W.2 does not arise. The Trial Court ought not to have simply eschewed the evidence of D.W.2 and the documents which were marked through D.W.2 as Ex.B.25 to Ex.B. 35. 35. In this regard, the learned Senior Counsel appearing for the appellants relied upon the judgment of this Court reported in (2009) 6 MLJ 677 in the case of D.F.Philips Vs. Damayanthi Kailasam & ors. which reads as follows :- “27. Similarly, question would arise as in the subject case, about the evidence receded inconclusive. The evidence recorded in cases where cress examination was not done com-pletely cannot be discarded altogether. It all depends upon case to case and no uniform rule of general application could be made in such matters. In cases wherein cross examination was practically completed and the witness was not in a position to subject himself for further cross examination on account of illness or otherwise, or on account of other justifiable reasons, the probative value of such evidence has to be considered by the Court. Section 33 of the Evidence Act permits the evidence given by a witness in a judicial proceeding or in a later stage of the very same judicial proceeding, the truth of the facts which was elicited during such examination, when the witness was dead or cannot be found or was incapable of giving evidence or in case the witness was kept out of the way by the adverse party. However, the proviso to the said Section also provides that the adverse party in the first proceeding must have the right and opportunity to cross examine him so as to use the evidence so tendered in the subsequent proceeding or in later stage of the same proceeding. Therefore, everything depends upon the peculiar facts of the said case. If the failure to face the further cross examination was involuntary, it stands in a different footing. 28. There is no provision for eschewing the incomplete evidence of a witness. The evidentiary value or probative value of such evidence is a matter to be considered by the trail Court, Situations would arise where on account of the less favourable answers given in the initial stage of cross examination, the witness may avoid the box on subsequent occasions. 28. There is no provision for eschewing the incomplete evidence of a witness. The evidentiary value or probative value of such evidence is a matter to be considered by the trail Court, Situations would arise where on account of the less favourable answers given in the initial stage of cross examination, the witness may avoid the box on subsequent occasions. In such circumstances, the trial Court is justified in forming an opinion about the probative value of such evidence in the peculiar factual background. In all cases where there was no deliberate attempt on the part of the witness to avoid cross examination, evidence would be admissible but its probative value is a matter to be decided by the trial Court. Merely by avoiding further cross examination, it cannot be said that the entire evidence has to be eschewed from consideration. It is always possible for the Court to examine all the surrounding circumstances leading to the avoidance of further cross examination and to come to a definite conclusion as to whether it was a deliberate act on the part of the witness. 29. In the case on hand, the Court has adopted a novel idea of eschewing the entire a evidence on account of the incomplete cross examination of D.W.1 Such a course was no where prescribed in the Evidence Act and it has no sanction of law. Instead of eschewing the evidence, Court should have examined the conduct of the witness both pre and post re-fcording evidence. However, without examining the probative value of the evidence, the Court has simply eschewed the evidence.” 36. Thus it is clear that in cases wherein cross examinations was practically completed and the witness was not in a position to subject himself for further cross examination on account of illness or otherwise, or on account of other justifiable reasons, the probative value of such evidence has to be considered by the Court. Section 33 of the Evidence Act permits the evidence given by a witness in a judicial proceeding or in a later stage of the very same judicial proceeding, the truth of the facts which was elicited during such examination, when the witness was dead or cannot be found or was incapable of giving evidence of in case the witness was kept out of the way by the adverse party. Further there is no provision for eschewing the incomplete evidence of a witness. 37. As stated supra, in the case on hand, D.W.2 was fully examined by the plaintiff during cross-examination. Only when the matter was posted for arguments on the side of the plaintiff that too after several month, the plaintiff filed application to reopen the evidence of D.W.2 and to send the Ex.A.3 for comparison of the signature of the fifth defendant with his admitted signature. Whereas, the Trial Court dismissed the application to send for the document for hand writing expert’s opinion and as such the reopening of D.W.2’s evidence does not arise, since there is no need to cross examine D.W.2 any further. Therefore, the Trial Court committed error in eschewing the entire evidence of D.W.2. In fact, the Trial Court failed to discuss anything about the evidence of D.W.2 and the documents marked through D.W.2. Therefore, the plaintiff failed to prove it’s claims as alleged in the plaint and the suit itself is liable to be dismissed entirely. Conclusion :- 38. Accordingly, the judgment and decree passed in O.S.No.481 of 2004 dated 29.11.2008 on the file of the learned Additional District and Sessions Judge, Fast Track Court-III, Coimbatore, is hereby set aside and the plaint in O.S.No.481 of 2004 is hereby dismissed. Findings in Criminal Appeal :- 39. Insofar as the Criminal Appeal as against the order of acquittal is concerned, when the claim of the accused negatived by this Court in A.S.No.477 of 2011, and when the accused categorically admits his liability to the tune of cheque amount, the judgment passed by the Appellate Court thereby acquitting the accused cannot be sustained and is liable to be set aside. The Appellate Court only on the basis of the findings of the Civil Court in O.S.No.481 of 2004 allowed the appeal and acquitted the accused. The accused denied the liability on the ground that there was an agreement between the accused and one M/s.Aarias Knit Faab and its partners dated 14.10.1999. The accused further alleged that the said M/s.Aarias Knit Faab and the complainant were jointly doing business with the accused and they were business associates. It was the further allegations that during the business transactions, the accused supplied grey fabric and yarn to the complainant and the said M/s.Aarias Knit Faab and its partners, for the purpose of knitting, dyeing and compacting the garments. It was the further allegations that during the business transactions, the accused supplied grey fabric and yarn to the complainant and the said M/s.Aarias Knit Faab and its partners, for the purpose of knitting, dyeing and compacting the garments. Further it was alleged that on receipt of the said grey fabric and yarn, the said M/s.Aarias Knit Faab and the complainant failed to return the finished garments and therefore, the accused sustained loss and also lost its reputation from its customers who placed orders from abroad and therefore, the liability towards the cheque issued in favour of the fifth defendant/defacto complaniant was adjusted and for the remaining amount, the accused filed a suit. Pursuant to the above stated allegations, the Appellate Court concluded that the cheque was not issued for legally enforceable debt and fully agreed with the case of the accused and acquitted the accused. 40. Now the entire claim of the accused is negatived by this Court and it is held that the cheque was issued in favour of the complainant for legally enforceable debt. Therefore, the accused failed to rebut the presumption in order to disprove the claim of the complainant by producing any piece of evidence. Further the agreement dated 14.10.1999 is also held to be a fabricated one on the ground that the stamp paper was purchased on 15.10.1999 and the agreement was entered between the accused and M/s.Aarias Knit Faab on 14.10.1999. Further all the transactions had allegedly happened after returning of the cheque. If at all the claim of the accused was true, in the reply notice, it would have denied the entire claim by stating all the transactions. 41. In fact, the accused also filed another complaint in C.C.No.153 of 2001 as against the complainant for the offence punishable under Section 138 of the NI Act by forging the signature of the complainant. While pending the complaint, the alleged cheque was sent to the forensic laboratory to verify the signature and the writing found in the cheque. The forensic expert opined that the signature and the writing of the cheque are fabricated. After receipt of the expert’s opinion, the accused herein did not pursue the said complaint and the same was dismissed. 42. While pending the complaint, the alleged cheque was sent to the forensic laboratory to verify the signature and the writing found in the cheque. The forensic expert opined that the signature and the writing of the cheque are fabricated. After receipt of the expert’s opinion, the accused herein did not pursue the said complaint and the same was dismissed. 42. That apart, the complainant filed a private complaint as against the accused in C.C.No.196 of 2006 for the offence of forgery as the signature of the complainant was forged and the proceedings under Section 138 of the NI Act were wrongfully initiated against him. Therefore, the complainant discharged his initial burden to prove his complaint for the offence punishable under of the NI Act. But the accused failed to rebut the same and as such the Trial Court rightly convicted the accused. Even then the Appellate Court by solely considering the findings of the Civil Court in O.S.No.481 of 2004 acquitted the accused. Therefore, the order of acquittal cannot be sustained and liable to be set aside. Conclusion :- 43. Accordingly, the judgment of acquittal dated 19.01.2004 made in C.A.No.282 of 2002 on the file of I Additional Sessions Judge, Coimbatore, is hereby set aside and the judgment of conviction and sentence imposed by the learned Judicial Magistrate, Palladam, in C.C.No.171 of 2001 dated 26.08.2002, is hereby restored. The complainant is at liberty to secure the accused to undergo remaining period of sentence and to pay compensation imposed by the Trial Court in accordance with law. 44. In the result, the Criminal Appeal stands allowed. Consequently connected miscellaneous petitions are closed. 45. The Appeal Suit is also allowed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.