High Court · 2025

Criminal Appeal No.576 of 2011IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:18.06.2025 CORAM :THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYCriminal Appeal No.576 of 2011Narayanasamy .. Appellant/ComplainantVs.U.Selvakumar .. Respondent/AccusedPrayer: Criminal Appeal filed under Section 378 of Code of Criminal Procedure, to set aside the order made in S.T.C.No.21 of 2010 on the file of the Judicial Magistrate No.III at Cuddalore dated 01.08.2011 and remand the matter for fresh consideration in accordance with law.For the Appellant :Mr.R.Karthikeyanfor Mr.R.BharanidharanFor the Respondent :Mr.N.U.Pressanna Page 1 of 8 https://www.mhc.tn.gov.in/judis Criminal Appeal No.576 of 2011J U D G M E N TThis Criminal Appeal is directed against the Judgment of the learned Judicial Magistrate No.III at Cuddalore dated 01.08.2011 made in S.T.C.No.21 of 2010. By the said Judgment, the Trial Court has acquitted the respondent/accused for the offence under Section 138 read with 142 of the Negotiable Instruments Act. Against which, the present appeal is filed.2. Heard, Mr.R.Karthikeyan, the learned counsel appearing on behalf of the appellant/complainant and Mr.N.U.Pressanna, the learned counsel appearing on behalf of the respondent/accused.3. The learned counsel for the appellant/complainant would submit that the case of the complainant is that the complainant was a partner of the business along with the accused and yet another person. After completion of work, accounts were checked and it was found that the accused was due and liable to the complainant to the tune of Rs.15 Lakhs. In discharge of the part liability, the instant cheque of Rs.13 Lakhs was issued. The same was duly presented and it was returned with an endorsement 'payment stopped by the drawer'. The accused Page 2 of 8 https://www.mhc.tn.gov.in/judis Criminal Appeal No.576 of 2011had wilfully and wantonly stopped the payment and therefore, by issuing the statutory notice, the complaint was thereafter filed. It can be seen that the accused had not let in any positive evidence except to mark the letters stopping payment to the cheque. When the complainant examined himself and discharged the initial onus, then there is a presumption that the cheque was issued only in respect of a legally enforceable debt, and the Trial Court ought not to have acquitted the accused. In the absence of any contra evidence, the Trial Court entered into the finding of acquittal, on the only basis that the complainant has not proved his case. 4. About the partnership business, when the entire affairs are oral in nature, there cannot be any document and as such, when the signature on the cheque is not denied by the accused and especially the accused has failed to prove as to how the cheque came to the custody of the complainant. The Trial Court ought not to have acquitted the accused. Therefore, he would submit that this is a case where this Court should upturn the finding.Page 3 of 8 https://www.mhc.tn.gov.in/judis Criminal Appeal No.576 of 20115. Per contra, the learned counsel appearing for the respondent submits that the Trial Court, upon a detailed appreciation of the evidence on record, rightly acquitted the respondent. It is contended that the respondent/accused successfully established during cross-examination that there existed no legally enforceable debt or liability at the time of issuance of the cheque. Furthermore, it was brought on record that the complainant was merely acting in the capacity of a Manager, while the accused was engaged solely as a contractor for the execution of the said work in Puducherry. If that is taken as proved, then the further explanation of the accused that there were day-to-day expenses for the construction activities, for which the signed cheques were also left in the custody of the complainant, who was the Manager, is very much probable. Considering the overall facts and circumstances and the probability of the case of the accused, the Trial Court held that the accused has proved his version, disbelieved the complainant, and acquitted the accused, and therefore the appeal deserves to be dismissed. 6. I have considered the rival submissions made on either side and Page 4 of 8 https://www.mhc.tn.gov.in/judis Criminal Appeal No.576 of 2011perused the material records of the case. 7. The case of the complainant is that the complainant and the accused are partners. When further cross-examined, the complainant submitted that there is no written proof or agreement between them in respect of the said business. No other material of any transaction of any nature whatsoever was let in by the complainant to prove that he is a partner in the business. On the contrary, when he was cross-examined by the respondent accused, the following are his answers:“ehd; ghz;or;nrhpapy; uhkd; jpnal;lhpy; gzp eilbgw;wnghJ ehd; ghl;duhf ,Ue;njd; vd;W bgha;ahf brhy;fpnwd; vd;W brhd;dhy; rhpay;y/ m';F kPjp ntiyfisf;Tl ehd;jhd; bra;njd;/ vjphp _uhk; fd;!;uf;c&d; vd;w epWtdk; vjphp bry;tf;FkhUf;F brhe;jkhdJ vd;W brhd;dhy; rhpjhd;/ ghz;or;nrhpapy; n$/cwhl;lypYk; uhkd; jpnal;lhpy; eilbgw;w gzpa[k; _uhk; fd;!;uf;c&d; epWtdk; jhd; gzp bra;jJ vd;why; rhpjhd;/”Therefore, in the cross-examination the complainant agrees that the accused is the owner of the construction concern, viz., Sri Ram Constructions, and the work in Puducherry was done by the construction concern, namely Sri Ram Constructions. Then, the accused's case became probable. Therefore, by duly Page 5 of 8 https://www.mhc.tn.gov.in/judis Criminal Appeal No.576 of 2011cross-examining the complainant, the accused has established his case to the level of preponderance of probability and he has rebutted the presumption.8. The Trial Court, after due appreciation of the entire evidence on record, for the said ground and also on various other grounds, has considered the case of the parties, believed the version of the defense, and doubted the version of the complainant. Therefore, granting the benefit of doubt, it acquitted the accused. When the Trial Court has taken up the said exercise and rendered its finding by due appraisal of evidence, this Court, in an appeal against acquittal, unless the finding is perverse or wholly unsustainable, cannot upturn the findings of the Trial Court. 9. Accordingly, finding no merits, this Criminal Appeal stands dismissed and the Judgment made in S.T.C.No.21 of 2010 on the file of the Judicial Magistrate No.III at Cuddalore dated 01.08.2011 stands confirmed. 18.06.2025 Page 6 of 8 https://www.mhc.tn.gov.in/judis Criminal Appeal No.576 of 2011Neutral Citation: Yes/NoJerTo1.The Judicial Magistrate No.III at Cuddalore.2.The Section OfficerVR Section, High Court of Madras.D.BHARATHA CHAKRAVARTHY, J.JerPage 7 of 8 https://www.mhc.tn.gov.in/judis Criminal Appeal No.576 of 2011 Criminal Appeal No.576 of 201118.06.2025Page 8 of 8