High Court · 2025

Crl.A.No.102 of 2022IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.10.2025CORAM:THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHYCrl.A.No.102 of 2022P.Saranya... PetitionerVsP.Kishore Kumar ... RespondentPrayer: Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, 1973, to set aside the judgement of acquittal passed in C.C.No. 3821 of 2018 dated 22.11.2021 by the learned Metropolitan Magistrate FTC, 1 at Egmore, @ Alikulam, Chennai and convict the respondent/accused as charged under Section 138 of Negotiable Instrument Act, 1881 in accordance with law. For Petitioner : Mr.R.GanesanFor Respondent : Mr.M.K.Sathish ORDERThis appeal is filed against the judgment of the learned Metropolitan Magistrate FTC, 1 at Egmore, Alikulam, Chennai, dated 22.11.2021, made in C.C.No.3821 of 2018. By that judgment, the Trial Court found the accused not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881, and acquitted him.1/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 20222. The case of the complainant is that she resides opposite the house of the accused, and in that context, she became acquainted with him. The accused portrayed himself as a successful businessman dealing in electronics in Nemili. Taking advantage of the complainant's status, as the only earning member of her family, the accused claimed he would return the amount with profit from his business income. The complainant, using her savings set aside for her marriage expenses, lent him money. Believing the accused's words, she parted with a total of Rs. 8,60,000 in cash between 2012 and 2017. However, the accused neither repaid the amount nor shared any profit from his business. When demanded, the accused issued a cheque for Rs.8,60,000/- dated 24.12.2017. When presented for collection, the cheque was dishonoured with the endorsement “funds insufficient.” Subsequently, the complainant issued a statutory notice on 29.01.2018. The accused neither replied nor paid the cheque amount, leading to the filing of the complaint.3. Upon the complaint being presented and the sworn statement recorded, summons was issued to the accused. Upon appearance and furnishing of copies, the accused denied the charge and stood trial. To prove her case, the complainant examined herself as P.W.1 and marked Ex.P1 to P4. When questioned under Section 313 of the Code of Criminal Procedure, the 2/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 2022accused denied the evidence as false and pleaded not guilty. No evidence was produced on the side of the defence. During cross-examination, Ex.D1 was marked. The Trial Court then heard both the learned counsel and found that the accused had rebutted the presumption through the cross-examination of P.W.1. In the absence of any other proof from the complainant, the court disbelieved her version, accepted the case of the accused, and acquitted him. Aggrieved by this, the present appeal has been filed.4. Mr. R. Ganesan, the learned counsel representing the complainant, submits that in this case, no reply was issued to the statutory notice. In the absence of any reply, the Court must readily presume in favor of the complainant. This is a suitable case where the complainant states she had sporadically parted with money between 2012 and 2017. There is no other concrete proof, and the fact that the complainant, who was saving money for her wedding and was an earning member of the family as a learned member of the Bar, was advancing cash is believable, especially when she is armed with the presumption. The trial Court should have recognized that the accused did nothing to rebut this presumption. The accused claims he left the cheque as security while borrowing Rs. 2,00,000/-. The accused has neither produced evidence to show repayment of that amount nor provided other positive 3/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 2022evidence to prove that he only borrowed Rs. 2,00,000/- and issued the cheque solely as security. Since the signature on the cheque is admitted, the presumption under the Negotiable Instruments Act, 1881, favors the complainant, and the trial Court should not have acquitted the accused.5. The learned counsel relied upon the following judgments of the Hon'ble Supreme Court of India:(i) K. N. Beena vs. Muniyappan and Another1 – for the proposition that the Courts have to presume that the cheque was issued for a legally existing debt or liability.(ii) Basalingappa vs. Mudibasappa2 – for the same proposition.(iii) M/s.Kalamani Tex & another vs. P. Balasubramanian3– to contend that it is not necessary for the complainant to adduce further proof once the signature in the cheque is admitted.(iv) Vijay vs. Laxman and Another4 – for the proposition that the onus of the complainant stands discharged to the level of preponderance of probability once the complainant enters the witness box and the cheque is duly marked and the accused admits the signature.1(2001) 8 SCC 4582(2019) 5 SCC 4183AIR Online 2021 SC 824(2013) 3 SCC 864/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 2022(v) Triyambak S. Hegde vs. Sripad5, more specifically relying upon paragraphs 12 to 16 – to plead that the accused has done nothing to rebut the presumption to the level of preponderance of probability.(vi) HMT Watches Limited. vs. M.A. Abida and Another6 – for the proposition that for the offence under Section 138 of the Negotiable Instruments Act, 1881, the Court need not go into the nitty-gritties of each disputed fact.6. In view of the fact that there is a cheque duly signed by the accused and presented for collection, the presumption favors the complainant. The learned counsel for the appellant also relied on the judgment of the Supreme Court of India in Rangappa vs. Sri Mohan7 where the Hon’ble Supreme Court reiterated the approach courts should take when dealing with cases under Section 138 of the Negotiable Instruments Act, 1881, stating that the complainant's duty is discharged by presenting the cheque, adhering to the timelines, and pleading about the nature of liability.5(2022) 1 SCC 7426(2015) 11 SCC 7767(2010) 11 SCC 4415/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 20227. The learned counsel submitted that the Court should consider the fact that the amount was not paid in a single sum but was given sporadically over a period of time. The complainant, being a resident of the house opposite the accused, naturally, due to their acquaintance, did not insist on any written proof; therefore, questions such as the transactions not reflecting in income tax returns should not be pressed in the context of this case. Consequently, the trial Court erred seriously in acquitting the accused. The learned counsel also argued that, in this case, the complainant did not specifically claim that she was a partner in the business, but only that she assisted the accused during the course of business. Therefore, it should be regarded as a repayment of a loan, and once the cheque was issued to discharge his liability, the Court should presume that the complainant proved the existence of a legal liability. Once the complainant fulfilled the initial burden and, with the presumption in her favor, in the absence of any positive evidence from the accused, the trial Court should not have acquitted the accused.8. Mr. M.K.Sathish, the learned counsel appearing on behalf of the respondent/accused, by taking this Court through the judgment, supported the findings of the trial Court, and also discussed the cross-examination of the 6/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 2022complainant. He submitted that the trial Court's decision to acquit the accused was correct. Furthermore, the learned counsel for the respondent argued that in this case, in the teeth of Exhibit D1, the lack of a reply notice to the statutory notice does not carry any significance. 9. I have considered the rival submissions made on either side and perused the material records of the case.10. In this case, it is the assertion of the complainant that she is not a partner in the business, but had only helped the accused in running the business by advancing money and substantially the pleading is that the amount should be treated only as a loan. In this regard, it is essential to extract the relevant averments made in the statutory notice issued by the complainant.“The very facts remain that, your client is an acquaintant reside just opposite to the house of my client and your client than posed himself as a true businessman doing electronic business in Nemili. My client while she was earing member of her family, your client taking advantage of her status deceived her to part money on the guise of giving profitable income from his business. My client states that out of salary 7/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 2022savings kept for marriage purpose, she fell into the prey of your client's representation to be true and genuine, she had parted a total sum of Rs. 8,60,000/- by way of cash covering the period from November 2012 till July 2017 in piece meal, however, your client has not parted any profitable income to my client on her demand except giving some lame excuses or other. Nevertheless, my client has not obtained any written instrument from your client for the money parted to him on good faith and belief.” (Emphasis supplied)11. The same is the specific case in the complaint as well. Therefore, it was specifically the case that the accused never paid any money from the profit and the complainant tried to present it as if it was only an advance or a loan. However, in the cross-examination, the complainant answered as follows:“2012 Kjy; vjphpf;F tpahghuj;jpw;F gzk; bfhLj;jjhf brhy;Yk; epiyapy; mjd; gpwF mth; yhgj;jpy; g';F bfhLf;ftpy;iy vd;W $%iy 2017 fhyfl;lk; tiuapy; eP';fs; bjhptpf;ftpy;iy vd;why; vjphp yhgj;jpy; bfh";rk; bfh";rk; g';F bfhLj;Jf;bfhz;oUe;jhh; mjdhy; gpur;riz ,y;yhky; ,Ue;jJ/ g[fhh;. nfl;twpd; Kjy; tprhuiz rhl;rpak; Mfpa Mtz';fspy; Vjphp yhgj;jpy; g';F bfhLj;J te;jJ bjhptpf;ftpy;iy vd;why; rhpjhd;/”8/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 202212. In that context, it should be seen that if the complainant pleads that she is a partner in the business and that profit was initially being shared and thereafter the accused stopped sharing the profit, then without crystallisation of liability, it cannot be said that there is a legally enforceable debt. On the other hand, the case of the complainant seems to be one of advancement of money, which should be repaid by the accused. If that is the case, originally in the complaint as well as in the statutory notice, the complainant has suppressed the fact that she had been receiving part amounts from the year 2012 to 2017. 13. Beyond this, when the accused claims that he had borrowed Rs. 2,00,000/- and left a cheque as security at that time, during cross-examination, the complainant admits to the loan of Rs. 2,00,000/- on a specific date, while denying the exact version of the accused regarding that date. The trial Court considered this. When the complainant provided different versions in the statutory notice, during the complaint, and in cross-examination—particularly regarding the loan advance—the trial Court concluded that the accused had rebutted the presumption. In the absence of any additional proof of the loan, 9/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 2022the trial Court favoured the accused with the benefit of doubt and acquitted him. These findings cannot be deemed perverse. Such a decision is plausible. This Court cannot interfere in an appeal against an acquittal.14. The argument relating to non-issue of reply notice to the demand notice issued by the complainant also fades into insignificance as the accused issued issued Ex-D1 even before the statutory notice was issued. There can be no quarrel over the propositions argued by the learned counsel for the appellant by citing the above judgments regarding the presumption and discharge of onus by the complainant. However, all that can be pressed into service if only the complainant had come up with a definite case. In this case, she herself is unclear and coming up with different versions at different points in time and as such it would be difficult to conclude that she had discharged her onus.15. Accordingly, finding no merits, Criminal Appeal No.102 of 2022 stands dismissed.23.10.2025Neutral Citation: Yesnsl10/11 https://www.mhc.tn.gov.in/judis Crl.A.No.102 of 2022ToThe Metropolitan Magistrate FTC, 1 at Egmore, @ Alikulam, Chennai.D.BHARATHA CHAKRAVARTHY, J.nslCrl.A.No. 102 of 201223.10.202511/11