High Court · 2018

CRL.A.No.430 of 2022IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.11.2025CORAMTHE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYCRL.A.No.430 of 2022Mr.Manikandan ... Appellant Vs.Mr.Hendry Martin Luther...RespondentPrayer:-: This Petition is filed under Section 378 (4) of Criminal Procedure Code, to allow this Appeal by setting aside the order of acquittal passed by the Learned III Additional Sessions Judge, Kallakurichi, Kallakurichi District in CA.No.12 of 2021, order dated 24.11.2021 and also reversing the order passed by the learned Judicial Magistrate, Fast Track Level, Kallakurichi in C.C.No.97/2018 order dated 09.08.2021.For Petitioner: Mr.S,SureshFor Respondents: Mr.R.Raja Prasanna1/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022O R D E RThis appeal is filed against the judgement of the III Additional Session Judge, Villupuram @ Kallakurichi dated 24.11.2021 made in Crl.A.No.12 of 2021. By the said judgment the Appellate Court reversed the finding of guilt made by the Trial Court and acquitted the respondent. By the judgement dated 09.08.2021, the Trial Court, namely, the Judicial Magistrate (Fast Court Level) Kallakurichi had in CC No. 97 of 2018 found the respondent guilty of an offence under section 138 of the Negotiable Instrument Act and sentenced him to undergo one year rigorous imprisonment and to pay the cheque amount of Rs.11,00,000/- as compensation. 2. This is a private complaint filed by the appellant under Section 200 of the Code of Criminal Procedure. The case of the complainant is that he is doing several businesses such as milk store, departmental store and catering business and by the business oriented basis the accused came to be known to the complainant for the past five years. The accused borrowed a sum of Rs.11,00,000/- for his urgent family expenses and to repay the family debts on 07.03.2018. At the time of borrowal, the accused promised to repay a sum of Rs.6,00,000/- within 45 days and issued a post dated cheque dated 23.04.2018 for the sum of Rs.6,00,000/-. The accused promised to pay the balance sum of Rs.5,00,000/- by way of cash within 2/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022the said 45 days. When the said cheque was presented for collection on 23.04.2018, the same returned dishonoured with an endorsement “kindly contact Drawer/ Drawee Bank and please present again”. The complainant was intimated about the dishonour of the cheque by a memo dated 25.04.2018. It is stated that the complainant and his relations including his wife conveyed the facts of returning of cheque to the accused and demanded the debt. On 18th May 2018, a session through middleman was arranged and during the said session the accused issued a fresh post dated cheque for a sum of Rs.11,00,000/- dated 13.06.2018. The said cheque was presented for collection on 13th June 2018. However, once again the complainant received the dishonour intimation with the endorsement “kindly contact Drawer/ Drawee Bank and please present again”. Thereafter, the complainant issued a statutory notice on 10.07.2018. However, no amount was paid within the period. The accused only issued a reply notice on 02.08.2018. Therefore, the complaint was filed.3. Upon recording the sworn statement, the complaint was taken on file. Upon issuance of summons, furnishing of copies and questioning, the accused denied the imputations and the matter was taken to trial. In order to bring home the charge, the complainant examined himself as P.W.1 and one of his friend was examined as P.W. 2. On behalf of the complainant Ex.P1 to Ex.P8 were marked.3/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 20224. Upon questioning about the material evidence on record, the accused denied the same as false. Thereafter, the accused examined himself as D.W.1 and the Manager of his bank was examined as DW.2. On behalf of the accused Ex. D1 to Ex.D 5 were marked. Through DW 2, three documents were marked as Ex.X.1 to X.3. Thereafter, the Trial Court after considering the case of the accused held that the accused has not done enough to rebut the presumption and disbelieved the version of the defence and found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and sentenced him as aforesaid. Aggrieved thereby, Crl.A.No.12 of 2021 on the file of the III Additional Sessions Judge, Villupuram @ Kallakurichi was filed.5. The Appellate Court, after re-appreciating the evidence, found that the accused had informed the bank, vide Exhibit X.3 even in October 2017, that three cheque leaves were missing and the complainant has not furnished any proof for disbursing such a huge hand loan amount of Rs.11,00,000/-. The Appellate Court also held that PW.2’s evidence also does not support the complainant’s case. The Appellate Court further held that, when the complainant is only 35 years old, working as a cook on a contract basis and also running a provision shop selling milk, etc., his capacity to advance a hand loan of Rs.11,00,000/- is doubtful, particularly 4/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022when no document has been produced to show how he mobilised such a huge sum. Ultimately, the Appellate Court disbelieved the version of the complainant and held that the version of the accused as probable and granted the benefit of doubt and acquitted the accused.6. Mr. Suresh, the learned counsel appearing on behalf of the appellant/complainant, by taking this Court through the evidence on record, would firstly submit that merely because the accused had clandestinely given a letter to the bank in October 2017 stating that three cheque leaves were misplaced and had thereafter in a pre-planned manner issued the cheque in the year 2018 the same should not by itself be a ground to disbelieve the complainant’s case. Secondly, the very defense of the accused that he had kept the cheques after due signature and it was stolen is unbelievable. Thirdly, the accused in the cross-examination has admitted that after the dishonour of the earlier cheque he was put on notice on 10.02.2018. If, according to the accused, the cheques had been stolen in October 2017 and the complainant had misused the stolen cheques, then after receiving the notice in February 2018 he would have immediately lodged a complaint. However, it can be seen that the first complaint of which only the receipt has been marked is dated 15.05.2018 and the second complaint is dated 13.07.2018, both of which were lodged only after the dishonour of the cheques. Therefore, the very conduct of the accused 5/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022cannot be believed on the face of it. Therefore, he would state that when the accused has not done anything to rebut the presumption and his entire case stands on falsity, there is no way that the presumption could have been termed as rebutted and the Trial Court rightly convicted the accused and there was no reason whatsoever for the Appellate Court to upturn the verdict. 7. Per Contra, Mr.R.Raja Prasanna, the learned counsel appearing on behalf of the respondent/accused would submit that in this case the letter that is given to the bank was duly marked by examining D.W.2 as Ex.X.3. On a perusal of the letter, it can be seen that the accused has stated that a total number of 3 cheque leaves were stolen in the month of October 2017 itself. Even the return of the first cheque was with the endorsement “kindly contact Drawer/ Drawee Bank and please present again” and therefore the complainant cannot feign ignorance and plead a case that the accused issued the second cheque for a sum of Rs.11,00,000/- after the dishonour of the first cheque. 8. The learned counsel would further submit that both the cheques were filled up only by the complainant and his wife and not by the accused. The complainant had pleaded that he had borrowed money for interest and also pledged the jewels to raise the money to advance an interest free hand 6/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022loan and the same is also not believable as no document has been produced to show how he had mobilised such a huge sum. The complainant neither had the capability nor the accused had any need to borrow such a huge sum of Rs.11,00,000/-. Therefore, the Appellate Court has rightly acquitted the accused and there is nothing for this court to interfere.9. I have considered the rival submissions made on either side and perused the material records of the case.10. Firstly, by mentioning about the legally enforceable debt i.e. there is a borrowal by way of a hand loan in the complaint, in the sworn statement and in the proof affidavit and by marking the cheques and the statutory notice, the complainant had made the preliminary averments regarding the cheques being issued for a legally enforceable debt and had also proved the ingredients of the offence under Section section 138 of the Negotiable Instruments Act and as such discharged his initial onus and the presumption under section 139 of the Negotiable Instruments Act arises in favour of the complainant. The question that is to be seen is that whether the accused had rebutted the presumption and if so whether there is any further proof by the complainant or the evidence on record would cast a doubt on the case of the complainant. In this regard when the accused had cross examined the complainant with reference to the amount that is paid, 7/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022the following is the answer that is given by the complainant.“ehd; vd; iftrk; 3.50.000-=k; itj;jpUe;njd;/ eifia mlkhdk; itj;j tifapy; 4.50.000-=k; itj;jpUe;njd;. kPjpj;bjhifahd 3.00.000-= fldhf bgw;Wk; bkhj;jkhf 11.00.000-= vjphpf;F fld; bfhLj;njd;/ ehd; eifia t';fpapy; mlkhdk; itj;J gzk; bgw;nwd;/ fld; bfhLj;j njjpapYk; mjw;F Kd;ghft[k; ehd; mlkhdk; itj;Js;nsd;/ 2 U:gha; tl;of;F vd; ez;gh;fsplkpUe;J fld; th';fpndd;/ 11 yl;rk; fld; bjhiff;F ehd; tl;o nfl;ftpy;iy/ ifkhw;whfjhd; fld; bfhLj;njd;/ U:gha; 2 tl;of;F fld; th';fpa[k;. 72 fhR tl;of;F eifia mlkhdk; itj;Jk; bjhif bgw;W mjid ifkhw;W fldhf bfhLj;njd; vd;gJ ek;gj;jFe;jitahf ,y;iy vd;why; rhpapy;y/”11. Secondly, with reference to the issuance of cheques and filing up of the same, the following is the answer that is given by the complainant.“ehd; gzk;bfhLj;J md;W vjphpapd; xU fhnrhiyia ehDk; kw;bwhU fhnrhiyia vdJ kidtpa[k; g{h;j;jp bra;J mjpy; vjphp ifbaGj;jpl;lhh;/ Kjy; fhnrhiy kindly contact the drawer drawee bank and please present again vd jpUg;gg;gl;Ls;sJ/ ”8/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 202212. When the first cheque was presented the same got dishonoured with the very same endorsement and the complainant also got the intimation from the bank by a memo dated 25.04.2018. If the cheque is returned dishonoured, the normal reaction should have been to issue a statutory notice or to approach the accused and get the second cheque or any other thing in writing at the earliest point of time. In this case, as per the complainant, it is only on 18th May 2018, a session was said to have been arranged by the middleman. But in the cross examination it is mentioned on behalf of the complainant that a statutory notice was also issued. The said statutory notice was not marked. The same is taken into account. 13. With reference to the capability of the complainant to advance the huge sum of Rs.9,00,000/- as a hand loan, the following answer is given by PW2.“11 yl;r U:gha; g[fhh;jhuUf;F vg;go te;jJ vd;why; mth; kspif fil itj;jpUf;fpwhh;. ghy; !;nlhh; itj;jpUf;fpwhh;. Rikay; ntiy bra;thh; nkYk;. eiffis mlkhdk; itj;J mjd; K:yk; te;j gzj;ij itj;jpUe;jhh;/”14. Thus, it can be seen that the complainant works as a cook on 9/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022contract and he is having a provision store and a milk store. The same is also taken into consideration. 15. In the complaint, the complainant states that he knew the accused who is said to be a Pastor on account of his business orientation which is also not explained by the complainant in the chief examination or cross examination. Thus, as the complainant’s case is based solely on a cheque which he has himself admitted was filled in only by him and his wife, the accused can be said to have rebutted the presumption to the level of preponderance of probability. Even thereafter there is no credible evidence on the side of the complainant to buttress his case that he has advanced a hand loan of Rs.11,00,000/-. Thus, on the basis of the above when the Appellate Court had come to the conclusion that the accused has rebutted the presumption to the level of preponderance of probability and has established a credible doubt on the very case of the complainant, the same cannot be said to be a perverse finding or an impossible view. 16. The learned counsel for the complainant laid much stress on the precarious defence that is put in by the accused. It is true that all is also not well with the accused whereby he claims that three cheque leaves were stolen in the month of October 2017. If the cheque leaves were stolen the answers given by him in the cross examination that he received a legal 10/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022notice after the dishonour of the first cheque and when he had come to know about the person who had stolen his cheque the fact that he did not take any action is very strange. Therefore, it can be seen that being a Pastor the conduct of the respondent/accused is also not above board. After the complaint is filed by the appellant, it is his duty to discharge his initial onus. If through cross examination, the presumption is rebutted still the bounden duty is on the complainant to prove that the cheques were issued for legally enforceable debt. In this case, the complainant has failed to discharge this burden and the Appellate Court having considered all these aspects has rightly granted the benefit of doubt to the accused. Hence, this Court is unable to come to the rescue of the appellant in an appeal against acquittal.17. Accordingly finding no merits, this Appeal stands dismissed.25.11.2025(shr)Speaking Order: Yes/NoNeutral Citation : Yes/NoTo1.The III Additional Sessions Judge, Kallakurichi, Kallakurichi District2.The Judicial Magistrate, Fast Track Level, Kallakurichi 11/12 https://www.mhc.tn.gov.in/judis CRL.A.No.430 of 2022D.BHARATHA CHAKRAVARTHY J.,(shr)CRL.A.No.430 of 202225.11.202512/12