Madras High Court · 2025

Crl.R.C.No.487 of 2019the Complainant. In such circumstances, the Complainant-Respondent has filed the instant complaint in C.C. No. 14 of 2014 under Section 138 of The Negotiable Instruments Act through his power of attorney agent. 4. Originally, the complaint was filed before the learned Judicial Magistrate-III, Coimbatore. The sworn statement of the Power of Attorney Agent of the Complainant and the documents filed by him were perused by the learned Judicial Magistrate-III, Coimbatore and having satisfied that the offence under Section 138 of Negotiable Instruments Act, 1881, is made out, the learned Judicial Magistrate-III, Coimbatore had taken cognizance of the offence and taken the complaint on file as C.C. No. 453 of 2013. Subsequently, after constitution of Fast Track Court to exclusively deal with cases under Section 138 of Negotiable Instruments Act, 1881, the C.C. No. 453 of 2013 was transferred to the Court of the learned Judicial Magistrate – Fast Track Court-I and re-numbered as C.C.No.14 of 2014. After re-numbering the complaint, summons were issued to the Accused and he appeared before the Trial Court.5. On appearance of the Accused, copies of the documents filed by the Complainant were furnished to him as required under Section 207 of the 3/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Code of Criminal Procedure and the Accused was questioned. The Accused denied the charges and claimed to tried. Therefore, trial was ordered. The Power of Attorney Agent of the Complainant C.L. Joseph examined himself as P.W-1 and the Complainant was examined as P.W-2. Ex.P-1 to Ex.P-5 were marked as documents. Ex.P-1 is the copy of the Power of Agent deed dated 19.08.2013. Ex.P-2 is the cheque dated 14.03.2013 for Rs.30,00,000/- bearing Cheque No.109685 drawn on HSBC Bank Limited, Race Course Branch, Coimbatore. Ex.P-3 is the written memo dated 10.06.2013. Ex.P-4 is the statutory notice issued by the Complainant on 05.07.2013. Ex.P-5 is the postal acknowledgment card. Ex.P-6 is the reply notice dated 25.07.2013. P.W-1 and P.W-2 were cross examined on behalf of the Accused. After closing of the evidence of the Complainant, the Accused was examined under Section 313 Cr.P.C. The Accused denied the incriminating evidence against him and disputed the claim of the Complainant regarding issuance of cheque for Rs.30,00,000/-.6. After completion of the proceedings under Section 313 of the Code of Criminal Procedure, one Mr. M.N. Rao was examined as D.W-1. The Accused was examined as D.W-2. Ex.D-1 to Ex.D-8 were marked. Ex.D-1 is the stop payment letter dated 04.03.2013 issued for cheque No.109685. Ex.D-4/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 20192 is the copy of Memorandum of Understanding dated 09.11.2013. Ex.D-3 is the copy of the legal notice dated 08.03.2013. Ex.D-4 is the reply notice dated 28.03.2013. Ex.D-5 is the copy of the legal notice dated 07.08.2013 along with postal receipt. Ex.D-6 is the postal acknowledgment card. Ex.D-7 is the stop payment letter dated 04.03.2013 for cheque No.109686. Ex.D-8 is the stop payment letter dated 0403.2013 for cheque No.109684. 7. After completion of evidence and after hearing the arguments of the learned Counsel for the Complainant and the learned Counsel for the Accused, on appreciation of evidence, the learned Judicial Magistrate, Fast Track Court–I, (Magisterial Level) Coimbatore dismissed the complaint and acquitted the Accused as per judgment dated 24.09.2018 passed in C.C.No.14 of 2014. 8. Aggrieved, the Complainant had preferred Criminal Appeal No.507 of 2018 before the Appellate Court questioning the correctness of the order of acquittal. The Criminal Appeal was made over by the learned Principal Sessions Judge, Coimbatore to the Court of the learned I Additional District and Sessions Judge, Coimbatore. After hearing the arguments of both the Appellant/Complainant and the Respondent/Accused, the learned I 5/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Additional District and Sessions Judge, Coimbatore on re-appreciation of evidence had convicted the Accused for the offence under Section 138 of Negotiable Instruments Act, 1881. 9. Questioning the correctness of the Judgment dated 27.04.2019 passed in Criminal Appeal No. 507 of 2018, the Accused had preferred this Criminal Revision.10. Mr. Deepan Udhay, learned Counsel for the Revision Petitioner contended that the Revision Petitioner along with two others had formed a partnership firm. Subsequently, there was dispute between them. Therefore, a Memorandum of Understanding has been entered into between them.Earlier, the Partnership firm had borrowed a sum of Rs.70,00,000/- as loan from the Complainant. At that time, the Accused was not a partner of the firm. As per the Memorandum of Understanding between them, Mr. Saseendran was removed as Partner and in his place, the Accused was inducted. On the date of inducting the Accused as a partner, the liability of the said Saseendran was only Rs.10,00,000/-. The Revision Petitioner as Partner was also bound to discharge his liability only to the tune of Rs.10,00,000/- and he had already issued cheque for the same. While so, no more liability could be fastened on 6/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019the Accused by the Complainant.11.Further it is the submission of the learned Counsel for the Revision Petitioner that two other cheques of the Revision Petitioner were misplaced. Therefore, he had issued notice to his Bank not to advance the amount mentioned in the cheque. The Complainant in this case had issued statutory notice regarding the liability of the Partnership firm, which was disputed by the Accused. Still, the Complainant proceeded with filing of the Complaint before the learned Judicial Magistrate, Fast Track Court-I, Magisterial level, Coimbatore. The Complainant examined himself as P.W-1 and documents were marked. The Accused also let in evidence that he had repaid the loan amount. Notwithstanding the same, the Appellate Court reversed the well considered judgment of acquittal passed by the trial court.12.It is the submission of the learned Counsel for the Revision Petitioner that even though the liability of the Petitioner herein, as newly inducted partner, is limited to Rs.10,00,000/-, the cheque was misused by the Complainant to file this case. Whereas the other Partners of the firm had not been proceeded with any case. Therefore, the judgment of acquittal recorded by the learned Judicial Magistrate No.III, Coimbatore is to be restored.7/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 201913.The learned Counsel for the Revision Petitioner relied on the following reported decisions of the Honourable Supreme Court in support of his contentions.i) Subhash Chand v. State (Delhi Administration) in Criminal Appeal No.50 of 2013ii) Anss Rajashekar v. Augustus Jeba Ananth in Criminal Appeal Nos. 95-96 of 201914.By pointing out the above decisions, it is contended by the learned counsel that as against an order of acquittal recorded by the Trial Court, a Criminal Appeal alone has to be preferred before this Court and the Appeal filed before the Appellate Court itself is not maintainable. 15. Even though notice was issued to the Respondent/Complainant and a counsel also entered appearance, when the Revision Case is taken up for hearing, there was no representation for the Respondent.Point for consideration:Whether the judgment of conviction recorded by the learned I Additional District and Sessions Judge in Criminal Appeal No. 507 of 2018 dated 27.04.2019 is to be set aside as perverse 8/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019warranting interference by this Court?16. Heard the learned Counsel for the Revision Petitioner. Perused the materials placed on record.17. Perused the judgment of the learned Judicial Magistrate, Fast Track Court-I, Magisterial level in Coimbatore in C.C. No. 14 of 2014 dated 24.09.2018. Perused the judgment of the learned I Additional District and Sessions Judge, Coimbatore in Criminal Appeal No.507 of 2018 dated 27.04.2019. Perused the documents under Ex.P-1 to Ex.P-6 and Ex.D-1 to Ex.D-8.18. The dispute is with regard to the amount to be settled by the Accused while entering as a partner in the partnership firm in the place of the outgoing Partner Mr. P.P. Saseendran. His only claim is that he needs to pay only Rs.10,44,462/- and not Rs.30,00,000/- as claimed by the Respondent/Complainant. In other words, the outgoing partner is liable to pay Rs.10,44,462/- and when he was inducted in his place, his liability cannot be over and above Rs.10,44,462/-. Even otherwise, the cheques in question have not been issued by him for a legally enforceable debt or liability and therefore, the complaint under Section 138 of The Negotiable Instruments Act is not 9/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019maintainable. It is also contended that as per the Memorandum of Understanding, the partners are not sharing the liabilities and income equally. They share it at the ratio of 25:75. However, the claim of the Complainant is that he had filed a private complaint for bouncing of cheque issued by the Accused for Rs.30,00,000/-. In reply to the statutory notice of the Complainant, the Accused had disputed the claim of Rs.30,00,000/-. As per the reply notice he is bound to pay the loan availed by the outgoing partner and the claim for payment of Rs.30 lakhs is not legally sustainable. For the entire loan of the partnership firm, none of the partners could be forced to settle the dues. 19. On perusal of Ex.D-3 it is clearly stated that the Complainant, who is also a party to the Memorandum of Understanding, had not followed the terms and conditions of the Memorandum of Understanding which forced the Accused to issue stop payment. The partnership firm was also issued the copy of the Ex.D-3, notice, thereby restraining them from presenting the cheque. While assessing the evidence of the Complainant, it is found that the Complainant had not marked the Memorandum of Understanding reached between the partners of the firm M/s. Exide Industrial Distributors (EID). The Accused had disputed the claim of the Complainant that he issued cheque for 10/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Rs.30,00,000/- to the Complainant. 20. It is the contention of the learned Counsel for the Accused that the loan of Rs.70,00,000/- availed by the partnership firm should be proportionate to all the partners. Whereas the attempt of the Complainant to present the cheque for Rs.30,00,000/- or to collect a sum of Rs.30 lakhs is untenable. Therefore, the Accused had issued a notice calling upon his Bank not to honor the cheque Nos.109684, 109685 and 109686.21. On perusal of the judgment of the learned Judicial Magistrate Fast Track Court-I Coimbatore it is found that the learned Judicial Magistrate had discussed the evidence available through P.W-1 and P.W-2, D.W-1 and D.W2. The learned Judicial Magistrate, Fast Track Court had observed that the signature in the cheque is not disputed and a presumption shall be drawn against the Accused that it is he who has issued the cheque. The initial presumption available under Section 139 of the Negotiable Instrument Act is therefore in favour of the Complainant. After the Complainant evidence was closed, the Accused had entered into witness box and examined himself as D.W-2. The claim of the Accused is that he did not borrow Rs.30,00,000/- and he had not issued cheque in question for discharging any debtor liability as 11/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019alleged by the Complainant. The Brother in law of the Accused was a partner in EID along with two other persons namely Allen Xavier and Roy P.Thomas and they are having their respective shares. Mr. Roy P.Thomas and Allen Xavier are friends. The loan of Rs.70,00,000/- availed by EID is admitted by all the partners. The Memorandum of Understanding under Ex.D-2 is also admitted. Out of the liability of Rs.70,00,000/-, a sum of Rs.20,44,000/- was paid to the brother in law of the Accused P.P. Saseendran and the said amount was received by Accused on behalf of his brother in law. As per the Memorandum of Understanding, the partners agreed to repay their drawings to EID and out of Rs.20,44,000/- Joy P.Thomas agreed to pay a sum of Rs.10,00,000/- to EID. In order to discharge the remaining amount Rs.10,44,462/- the Accused issued his cheque No.109686 drawn on HSBC Bank, Coimbatore. After issuing the cheque, the partners had not followed the terms and conditions in the Memorandum of Understanding and thereby dispute arose between the partners of EID. Hence, the Accused given stop payment letter to his Bank on 04.03.2013. The Accused issued this cheque only to discharge the amount of Rs.10,44,462/- to EID. The claim of the Accused is that he had not at all issued the cheque to the Complainant. In this situation, how the Complainant obtained the cheque No.109685 and availed the cheque amount of Rs.30,00,000/- is not at all known to the Accused. It is 12/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019an admitted position that the Complainant lent the amount of Rs.70,00,000/- to EID and Accused issued cheque bearing No.109686 to EID. However, the Complainant failed to explain about the possession of Cheque in question for Rs.30,00,000/-. 22. Even the Complainant failed to mention the date of loan and explain the rate of interest charged for Rs.70,00,000/-. Further the Complainant failed to explain as to whether he had taken steps against other partners to recover the remaining amount. It appears that only as against the Accused, who was newly inducted into the partnership, proceedings under Section 138 of The Act have been initiated and not as against the other partners. Hence, the Accused cannot be called upon to discharge the loan of Rs.30,00,000/- to the Complainant. The amount claimed in cheque in question is not legally enforcible by law. Hence, the complaint filed by the Complainant is liable to be dismissed. 23. On perusal of the records, it reveals that the Complainant and Accused are known persons and the Complainant lent Rs.70,00,000/- whereas the Accused is not at all a partner at the time when the amount was paid. However, the Accused received the amount of Rs.20,44,000/- for his brother in 13/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019law and it is acknowledged by the Accused under Ex.D-2. The execution of Memorandum of Understanding is not disputed by none of the partners. As per Ex.D-2, the Accused is liable to pay the amount of Rs.20,44,000/- out of which Roy P.Thomas agreed to pay the sum of Rs.10,00,000/-. In order to discharge the remaining amount, Accused issued the cheque bearing No.109686 to EID and this is not disputed by the Accused. However, the cheque in question was not at all issued to the EID and it is not at all mentioned in Ex.D-2. It raise a serious doubt as to how the possession of cheque in question had gone to the Complainant. The cheque in question is not issued by the Accused and therefore, he gave a letter to his bank to stop payment. The Accused gave stop payment letter for cheque bearing No.109686 and cheques bearing Nos.109684 and 109685. 24. The Complainant failed to explain the rate of interest and failed to bifurcate the principal and interest payable by the Accused. It is the settled principle of law that the Accused need not prove the case beyond reasonable doubt. It is enough if he clears the doubt in the mind of the Court. It is not the case of the Complainant that the Accused issued cheque to EID. The Complainant collected the cheque from the EID and filed it. Therefore, the learned Judicial Magistrate arrived at a correct conclusion that the 14/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Complainant had not explained the circumstances which prompted the Accused to allegedly issue the cheques. Hence, the trial court reversed the burden upon the Complainant to explain about the existing liability between the parties. The Complainant is least bothered to prove the reverse policy laid by him. Therefore, the Trial Court came to question that the defense raised by the Accused creates doubt regarding the existing liability, until the contradiction is proved. It is presumed that the cheque in question was issued for legal enforceable debt or liability unless and otherwise the contrary is proved. The initial burden is on the Complainant to prove his case beyond reasonable doubt. In this case, the Complainant did not bother to prove the burden cast upon him. In such circumstances, the defense raised by the Accused is probable and acceptable. Therefore, the learned Judicial Magistrate, Fast Track Court-I Magisterial level dismissed the complaint and acquitted the Accused.25. On Appeal, the learned I Additional District and Sessions Judge, on re-appreciation of evidence held as follows:14. KiwaPl;lhsuplk; M/s. Exide Industrial Distributors epWtdk; U/ 70.00.000/- fld; bgw;Wf;bfhz;Ls;sJ vd;gJ vjpupahy; xg;g[f;bfhs;sg;gl;l epiyapy; nkw;go epWtdj;jpw;F KiwaPl;lhsu; U/ 70.00.000/- fldhf bfhLj;jhu; vd;gij fhl;lf;Toa Mtzj;ij KiwaPl;lhsu; jhf;fy; bra;a ntz;oa 15/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019mtrpak; ,y;iy/ vjpupahy; xg;g[f;bfhs;sg;gl;l r';fjpia KiwaPl;lhsu; epUgpf;f ntz;oa fl;lhak; ,y;iy/ mt;thW jhd; tUk; khz;ig brd;id cau;ePjpkd;w Kd;jPu;g;gpy; nfhol;L fhl;lg;gl;Ls;sJ/15. tHf;F vjpupahy; jhf;fy; bra;ag;gl;l v/k/rh/M2 g[upe;Jzu;t[ xg;ge;jk; gf;fk; 5y; M/s. Exide Industrial Distributors epWtdj;jpd; xt;bthU g';FjhuUk; kw;Wk; vjpupa[k; vt;tst[ bjhif mtutu; g';Ff;F KiwaPl;lhsUf;F bfhLf;f ntz;Lk; vd Fwpg;gpl;L brhy;yg;glhj epiyapy; ,J Fwpj;J k/rh/M4 rl;l mwptpg;gpYk; KiwaPl;oYk; k/rh/M/1. 2 d; rhl;rpfspd; thf;FKyj;jpYk; Fwpg;gpl;L brhy;y ntz;oa mtrpak; ,y;iy/ mnj nghy; fld; bjhiff;F tl;o vt;tst[ vd;gJ Fwpj;J KiwaPl;oYk;. k/rh/M4 rl;l mwptpg;gpYk; Twg;glhjjhy; k/rh/M2 fhnrhiy rl;lg;go jPu;f;fg;gl ntz;oa flDf;fhf bfhLf;fg;gltpy;iy vd Kot[ bra;a ,ayhJ/ mnj nghy; k/rh/M2 fhnrhiy vg;nghJ v';F itj;J KiwaPl;lhsu; trk; vjpup bfhLj;jhu; vd;gJ k/rh/M4 mwptpg;gpYk; KiwaPl;oYk; Twg;glhjJ KiwaPl;lhsupd; fl;rpia ghjpg;gila bra;ahJ/ rpy mw;gkhd fhuz';fis brhy;yp tHf;F Fw;wj;jpypUe;J vjpup jg;gpf;f KoahJ/ rl;l mDkhdj;ij kWjypf;f mw;g fhuz';fis nghJkhdjhf mikahJ khw;W Kiwahtz rl;lj;jpy; bfhLf;fg;gl;l statutory presumption KiwaPl;lhsUf;F rhjfkhf ,Uf;ff;Toa tYthd mDkhd';fs; MFk;/ mtw;iw kWjypg;gJ vd;gJ rhj;jpaf;TWfspd; nkk;gl;l epiyapy; (Preponderance of Probabilities) ,Uf;f ntz;Lk;/ rl;l epiy ,t;thW ,Uf;fpd;w nghJ rpy mw;g fhuz';fis Kd; itj;J rl;l mDkhd';fs; kWjypf;fg;gl;ljhf tprhuiz ePjpkd;wk; Kot[ bra;jJ jtwhdjhFk;/26. The reasoning of the learned I Additional District and Sessions Judge is found unacceptable considering the fact that the Accused was 16/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019inducted as partner of the firm EID just prior to the execution of Memorandum of Understanding. The Memorandum of Understanding agreed between the parties had not been marked on the side of the Complainant. While so, the marking of such document under Ex.D-2 indicates the contention raised by the Accused as his defense is found acceptable. The reason for the Complainant for not marking the Memorandum of Understanding as Exhibit indicates or gives hint that he had wantonly avoided or withheld material information without marking the most important document which fixes liability of the Accused in the place of his brother in law P.P. Saseendran. When the Memorandum of Understanding had not stated about the share of each of the partners towards liability of the partnership firm EID, it is found unnatural. The conduct of the Complainant in not marking the Memorandum of Understanding itself gives an indication that he had not stated the fact fairly. Merely because the Accused signed the cheque and had not disputed the cheque and it gives a presumption to the Court under 118 and 139 of Negotiable Instrument Act, it will not help the Complainant in this case. As per the averments in the Complaint, it is a partnership firm which had availed the loan. Each of the partners agreed to settle the loan of the partnership firm. If that be so, the liability is to be shared equally or according to the income derived by each of the partners. Their share is to be settled towards loan in 17/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019equal proportion. In such circumstances, the Complainant seeking to recover the money of Rs.30,00,000/- from P.P. Saseendran or his brother in law Anil Kumar through the cheque issued by Anil Kumar for Rs.10,00,000/- and odd which had been misused as Rs.30,00,000/- by the Complainant is found unacceptable. 27. The learned I Additional District and Sessions Judge in the judgment impugned in this Criminal Revision, observed that when the cheque had been issued by the Accused and the signature of the cheque is not disputed by the Accused then the presumption is to be drawn against him for the amount arrived in the Memorandum of Understanding. Instead, the Complainant had filled up the cheque for Rs.30,00,000/- and presented it. Such an observation cannot be countenanced especially when there are inconsistency in the evidence of the Complainant regarding the liability based on the Memorandum of Understanding. Whereas the Accused had let in evidence and marked Memorandum of Understanding as Ex.D-2 during trial which indicates that the claim of the Accused is fair. The learned I Additional District and Sessions Judge, Coimbatore misdirected himself and reversed the finding of the learned Judicial Magistrate, Fast Track Court-I, Coimbatore, which requires to be interfered with by this Court.18/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019 28. The Appellate Court has all the powers of trial Court except recording the evidence and observing the demenour of the witnesses. If the Trial Judge had arrived at a conclusion, on Appeal or revision by the learned Appellate Judge, the learned Appellate Judge can re-assess the evidence. On the same set of evidence, on re-assessment of evidence, if the learned Appellate Judge arrived at a conclusion which is just opposite to the finding recorded by the learned trial Judge, the Appellate Judge shall disturb the finding of the trial Judge. However, the trial Judge had always got the advantage of observing the demenour of witnesses which is not available for the Appellate Court. Therefore, the reversal of the finding by the learned I Additional District and Sessions Judge, in Criminal Appeal is found perverse. When there is dispute between the partners of the firm, EID without marking Memorandum of Understanding, the attempt of the Complainant to seek relief against the Accused in C.C.No.14 of 2014 is unacceptable.29. The Accused shall let in rebuttal evidence but it is not always necessary for the Accused himself to let in evidence. He can probabilise the defense by weakening the case of the Complainant. as per Section 139 of the Negotiable Instruments Act. By probablizing the defense, the reverse burden is 19/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019on the Complainant to disprove the claim of the Accused but such reverse burden had not been satisfactorily discharged by the Complainant in this case. While so, the Accused is entitled to acquittal as per the ruling of the Honourable Supreme Court in the case of Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441. 30. In this case, the Accused was able to discharge the burden of rebuttal evidence under Section 139 through Ex.D-1 to Ex.D-8. Therefore, as per reported decision in the case of Rangappa vs. Sri Mohan, the burden shifts towards Complainant to disprove the case of the Accused. The Complainant had not discharged the burden to disprove the rebuttal evidence of the Accused. Therefore, the conviction recorded by the learned I Additional District and Sessions Judge, Coimbatore reversing the judgment of acquittal is perverse. 31. As per the amended Section 378 of Cr.P.C. the Appeal against judgment of acquittal is not maintainable before the Court of Sessions. Such appeal ought to have been filed before this Court and with the leave of this Court, the appeal ought to have been filed. Therefore, the entertaining of Appeal by the learned Sessions Judge, itself is not maintainable. On this 20/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019ground also, the judgment of the learned I Additional District and Sessions Judge in reversing the judgment of acquittal by the learned I Additional District and Sessions Judge, Coimbatore is liable to be set aside. Therefore, this revision has to be treated as Appeal and this Court shall consider the judgment of acquittal and confirm the same, as the Complainant has not proved the liability of one of the partners for paying the entire dues. 32. The loan was Rs.70,00,000/- which is proportionately 25% for the partner P.P. Saseendran and 25% for the other partner Roy Thomas and 50% for Allen Xavier. As per the partnership deed, the assets and liabilities shall be shared as 25:25:50 instead, out of Rs.70,00,000/-, Rs.30,00,000/- cheque was misused for the liability against the Accused inspite of the understanding reached as per the Memorandum of Understanding. The Memorandum of Understanding was not at all marked on the side of the Complainant before the trial Court. The Complainant entered the witness box as P.W-2 and the Power of Attorney agent, who filed the complaint on behalf of the Principal/PW2, examined himself as P.W-1. After cross examination when he did not answer the questions put to him in cross examination stating that he does not have the knowledge of those transactions, the original Complainant came forward by filing affidavit. In cases of this nature, actually, the original Complainant 21/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019himself ought to have entered the witness box first. The complaint can be instituted by the Power of Attorney Agent, but the original Complainant, who has knowledge of the facts of the case alone, is competent witness and after letting in evidence through Power of Attorney agent he is estopped from entering witness box. Therefore, deposition of the Complainant, as PW2, also has to be rejected. The learned Judicial Magistrate, Fast Track Court-I Coimbatore had on proper reasoning rejected the evidence of the Complainant and acquitted the Accused. The learned I Additional District and Sessions Judge, had only on presumption under Section 139 convicted the Accused and reversed the judgment of acquittal which is found perverse and is to be set aside.33. On perusal of the copies of the original records, it is found that the original Complainant Kochappan Thomas had himself examined as P.W-2 and not as original P.W-1. Only when P.W-1 Joseph was unable to answer the suggestions of the learned Counsel for the Accused regarding the details of the transaction involving the Principal Kochappan Thomas and the Accused Anil Kumar, he had stepped into the witness box. It is against the accepted principle. The Complainant can lodge a complaint through power of attorney agent but for deposing as a competent witness, the personal knowledge of the 22/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019original Complainant is a requirement under the Indian Evidence Act. The best evidence available to the parties in dispute had to be placed before the Court. The attempt of the original Complainant to avoid the witness box gives a presumption to the Court that the Complainant has something to hide from the Court. When he had realized that examination of P.W-1, Power of Attorney Agent Joseph cannot help him in securing a conviction against the Accused, he had taken the risk of entering the witness box as P.W-2. When the original Complainant was examined as P.W-2, he had admitted in cross examination that the brother in law of the Accused, Saseendran alone is the partner of EID and Accused is not the partner of EID. Also he had admitted that Allen Xavier is a partner of EID along with Saseendran. One Roy Thomas is also a partner along with Saseendran and Allen Xavier. He had admitted that he had not mentioned the date on which the amount of Rs.70,00,000/- was lent to the partnership firm in his legal notice and in the complaint. Also he had admitted that he had not produced any document to prove that he had lent Rs.70,00,000/- to the partnership firm before this Court. Also he had admitted in his cross examination that the quantum to repaid by each of the partners were not mentioned in the legal notice. Thus, it is not known as to how the amount of Rs.30,00,000/- was fixed on the Accused Anil Kumar out of the liability of partnership firm - EID for Rs.70,00,000/-. It is also not known as 23/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019to how the quantum was fixed on the sole Accused in this Complaint Anil Kumar for Rs.30,00,000/-. It was not mentioned in the notice or in the complaint. It is also not known as to how the cheque from the Accused reached the hands of the Complainant and even this was also not mentioned in the complaint or in the statutory notice. PW2 admitted that he was not aware of the notice issued against Allen Thomas by the Accused Anil Kumar in the month of March 2013. The suggestion of the learned Counsel for the Accused that he knew the details of the notice sent by the Accused to Allen Xavier who claims ignorance wantonly, was denied by him. When there was Memorandum of Understanding executed between the partners Allen Xavier, Saseendran and Roy Thomas, there is no necessity for Anil Kumar to issue cheque for Rs.30,00,000/- was denied by him. The suggestion that the Accused owed Rs.10,44,462/- as per the Memorandum of Understanding and not Rs.30,00,000 was also denied by him. The suggestion of the learned Counsel for the Accused that the Accused does not owe any enforceable liability to the Complainant was also denied by him in his cross examination. The Complainant as P.W-2 claimed ignorance that the Accused had issued stop payment to his bank regarding the cheque No.109684. The copy of the Memorandum of Understanding was also not placed by the Complainant to show the bona fide. Therefore, the Court has to draw adverse inference 24/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019regarding the claim of the Complainant that the Accused had issued cheque on behalf of his brother in law in continuation of the Memorandum of Understanding reached between the partners of the firm, EID. To prove such claim, the Complainant has to mark that particular document - Memorandum of Understanding, which document was marked on the side of the Accused as Ex.D-2. Thus, without any document proof the claim of the Complainant regarding prior liability against Anil Kumar, the Accused in C.C.No.453 of 2013 cannot be accepted. When the Complainant relies on Memorandum of Understanding, he is duty bound to mark it as a document to invoke Section 138 of the Negotiable Instruments Act against the Accused who is not a partner of EID, partnership firm. In such cases, merely a cheque was signed and issued it will help the Complainant to invoke Section 138 of the Negotiable Instruments Act to record conviction against the Accused. Even though, the cheque was not filled up and signed by the Accused, how the Accused owes Rs.30,00,000/- has to be explained by the Complainant both in his statutory notice as well as in the complaint. The complaint is bereft of such details. For the liability of the partnership firm for Rs.70,00,000/- which they owe to the Complainant, the Complainant seeking Rs.30,00,000/- from one the Accused, who is the brother in law of erstwhile Partner Saseendran. As per the claim of one of the partners, Memorandum of Understanding reached 25/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019between the partners Saseendran, Allen Xavier and Roy Thomas. Saseendran and Roy Thomas owe 25% of the assets and liabilities of the firm. Allen Xavier owes 50 % of the assets and liabilities of the partnership firm and Allen Xavier was the long time School friend of the Complainant right from his school days. For the liability of the partnership firm for Rs.70,00,000/- fixing the quantum of Rs.30,00,000/- on the head and shoulders of Accused is not proper without any acceptable reasons or without any cogent reasons to be placed before the Court of law. Just because a unfilled duly signed cheque was issued to the partners, which was utilized or exploited by the Complainant will not help the Complainant to secure conviction against the Accused. When the Accused sensed that his cheque would be exploited either by Allen Xavier or his friend, he had alerted his bank by issuing a letter for stop payment which cannot be faulted. The Complainant as well as the Accused are aware of the consequences of issuing unfilled duly signed cheques. As per the Accused, the Complainant herein is not the holder in due course. It was issued to the partnership firm in tune with the Memorandum of Understanding signed between the partners under Ex.D-2, whereas the Complaint had been filed by the Accused suppressing Ex.D-2/Memorandum of Understanding . Therefore, the Complainant has not approached the Court with clean hands. The relevant portion of Memorandum of Understanding are as follows:-26/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 20195) Though Saseendran has already resigned from “AARBEE” by executing a deed of retirement for the purpose of banking operation, This retirement is only for some technical purpose and it is agreed that this retirement will be effective only if all the amount due as capital and profits to Saseendran as a partner is paid by Mr.Roy. As a financial and functional representative of Mr.Saseendran all the amounts due shall be settled to Mr. Anil. 6) Mr.”ROY” has pledged his immovable property for securing the bank loan obtained by the firm “EID” and this property has to be released. 7) To overcome the present crisis in EID, the parties here to has to repay their drawing to EID which shall be used only as per the clauses of this MoU before 20th November 2010.a. Mr. Allen XavierRs.18,35,154/-b. Mr. AnilRs.20,44,462/-c. Mr.Roy ThomasRs. 9,68,353/-8) Mr.Roy Thomas will pay Rs.10,00,000/- out of the amounts payable to Mr.Anil under clause No.5 to M/s. EID on behalf of Mr.Anil, which EID will receive as a repayment of Drawings of Mr.Anil and the Balance Rs.10,44,462/- will be paid by Mr.Anil to EID. The parties of this MoU has issued the following cheques for the above referred payments.8 a) Cheque No.591135 drawn on the South Indian Bank, Trichy road Branch, Coimbatore (Bank account of Mr. Allen) for Rs.18,35,154/-b) Cheque No.339028 drawn on State Bank of India, R.S. Puram Branch, Coimbatore 641002 (Bank account of Mr.Roy Thomas) for Rs.19,68,353/-c) Cheque No.109686 drawn on HSBC Bank, Coimbatore Branch, Coimbatore Branch, Coimbatore (Bank Account of Mr.Anil Kumar) for Rs.10,444,62/-27/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 20199) EID has subscribed to a chit for a value of approximately for Rs.20,00,000/- and it was decided to take the prize money of this chit in the month of December 2010.10) Mr. Sunny Thomas has given a loan of Rs.70,00,000/- to EID which to be repaid along with the Interest. All the partners including Mr.Anil agrees that they are responsible to repay this loan along with interest before 25.12.2010.11) All the monies received by EID under Clause No.7, 8 and 9 shall be used to settled the loan with interest of Mr.Sunny Thomas and the Bank loan with interest (to the extent possible)12) Once all the obligations of this agreement is completed then EID will be closed or run as per the decisions of the parties to this agreement.13) This agreement embodies the entire understanding of the parties as to its subject matter and shall not be amended except in writing executed by both parties.14) All disputes, questions of differences etc arising in relation to this agreement shall be refereed to a single arbitrator Mr.P.Mahendran, Chartered Accountant, S/o. N. Perumalswamy, 1533, Trichy Road, Coimbatore in accordance with and subject to the provisions of the Indian Arbitration and Reconciliation Act and the arbitration proceedings shall be held in Coimbatore. The Arbitration award will be completely binding on the parties of this agreement.15) Notices and other communications under the agreement shall be in writing addressed as indicated in the description of parties above and the communication shall be in registered post with acknowledgment.34. The Accused had issued notice dated 08.03.2013 to Allen Xavier indicating that 28/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 20192. the cheque No.109686 in A/c No.115060576-006 to M/s.Exide Industrial Distributors as per the MoU between P.P.Saseendran 2) Allen Xavier 3) Roy Thomas 4) Anil Kumar dated 09.11.2010. 3. Since you did not show any account to Mr.Saseendran, since you have violated the MoU. My client was forced to stop payment of the above cheque on 04.03.2013 with the Bank. 4. Under the above circumstances, you are hereby called upon not to present the cheque for collection. You are adviced to present the cheque only after the account settlement between you all as per the MoU dated 09.11.2010 please take notice accordingly.”35. The copy of the notice was served on the Inspector of Police (Crime), B-7, Police Station Pulyakulam, Coimbatore, Assistant Commissioner of Police (East) Singanallur, Coimbatore, Deputy Commissioner of Police (Crime), Coimbatore City, Commissioner of Police, Commissioner City, Director General of Police, Dr.Radhakrishnan Road, Mylapore, Chennai, Hon'ble Chief Minister Grievance Cell, St.George Fort, Chennai. For the Notice dated 08.03.2013, Allen Xavier had issued reply on 28.03.2013 through Advocate Mr.R.Kanagaraj, where Allen Xavier disputed the claim directing the Accused Anil Kumar to meet the Auditor/Chartered Accountant. In continuation of the same, Anil Kumar had issued notice dated 07.08.2013 to Mr.P.Mahendran, Chartered Accountant regarding the difference of opinion in the Partnership firm and the cheque issued by Accused in cheque No.109686 drawn on HSBC Bank, for the sum of Rs.10,44,462/- handed over to 29/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Mahendran, Chartered Accountant. It was also agreed that the cheque shall be used after the firm is able to finalise the accounts while producing profit and loss, Balance sheet etc. Till date no such steps have been taken by the firm, therefore directed the Chartered Accountant to return the cheque bearing No.109686. Instead Kochappan Thomas had proceeded with the complaint and issued statutory notice as though Accused owed Rs.30,00,000/- . Since he had suppressed the Memorandum of Understanding regarding the dispute between the partners in EID partnership firm, the Court has to necessarily draw adverse inference against the Complainant. Merely the Accused had signed the cheque and issued it, it will not help the Complainant to raise a presumption against the Accused. As per the notice issued by the Accused under Ex.D-3, Ex.D-4 and Ex.D-5 it indicates that there is no liability. The Accused had discharged the burden of proving the rebuttal evidence under Section 139 of the Negotiable Instruments Act. Therefore, the learned Judicial Magistrate had recorded acquittal against he Accused. The learned III Additional District and Sessions Judge had failed to appreciate the evidence, in the light of the document under Ex.D-1 to Ex.D-8 and merely on the basis of the presumption under Section 139 of the Negotiable Instruments Act, reversed the finding of acquittal and thereby recorded the finding of guilt against the Accused which is found perverse.30/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019 36. Since it is judgment of acquittal, the Appeal against the acquittal had to be preferred only before the High Court and not before the Sessions Court. Therefore, the learned I Additional District and Sessions Judge taking up the Appeal for consideration itself is an illegality. The Appeal itself was not maintainable. The Accused had preferred this Criminal Revision under Section 397 r/w. 401 of Cr.P.C. Therefore, this Court has to exercise the power of revision under Section 401 of Cr.P.C to re-assess the evidence. Accordingly, this Court had call for records and perused the records and found that the appreciation of evidence was proper by the learned Judicial Magistrate, Fast Track Court-I, Coimbatore in C.C.No.14 of 2014 whereas the learned Sessions Judge, without jurisdiction considered the argument of the learned Counsel for the Complainant/Appellant and reversed the finding of the learned Judicial Magistrate, Fast Track Court-I, Magisterial level, Coimbatore. Also, it is against the principles regarding re-appreciation of evidence by the Appellate Judge. The Appellate Court shall appreciate the judgment of acquittal with caution. It shall not reverse the finding of acquittal without proper assessment of evidence. Even with the same set of evidence, the learned Appellate Judge arrived at the different conclusion but it shall not trust its conclusion on the finding of the trial Judge. As per the decision of the 31/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Honourable Supreme Court judgment, as against acquittal recorded in a private complaint, an Appeal lies only to the High Court and this was not considered by the learned Sessions Judge. Therefore, this Court exercising the powers of revision under Section 401 of Cr.P.C treated this revision as Appeal, perused the original records and re-assessed the evidence on the same set of evidence. On re-assessing the evidence, it is found that the Complainant had not approached the Court with clean hands. He has, with ulterior motive, filed the complaint through his Power of Attorney and allowing his Power of Attorney to let in evidence on his behalf which is also against the reported decision of the Honourable Supreme Court.37. In the light of the above discussion, the point for consideration is answered against the Complainant and in favour of the Accused. The judgment dated 27.04.2019 passed in Crl. A. No. 507 of 2018 on the file of the learned I Additional District and Sessions Judge, Coimbatore is found perverse and is to be set aside.In the result, this Criminal Revision Case is allowed. The judgment dated 27.04.2019 passed in Crl. A. No. 507 of 2018 on the file of the learned I Additional District and Sessions Judge, Coimbatore is set aside. The 32/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Judgment of acquittal dated 24.09.2018 passed in C.C. No. 14 of 2014 on the file of the Fast Track Magistrate-I, Coimbatore is restored. 02.06.2025shlIndex: Yes/NoInternet: Yes/NoSpeaking/Non-speaking orderNeutral Citation : Yes/No To 1. I Additional District and Sessions Court, Coimbatore2. The Fast Track Magistrate-I, Coimbatore.3. The Section Officer, Criminal Section, High Court Madras.33/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019SATHI KUMAR SUKUMARA KURUP , J shlOrder made inCrl.R.C.No.487 of 201902.06.202534/34

Crl.R.C.No.487 of 2019the Complainant. In such circumstances, the Complainant-Respondent has filed the instant complaint in C.C. No. 14 of 2014 under Section 138 of The Negotiable Instruments Act through his power of attorney agent. 4. Originally, the complaint was filed before the learned Judicial Magistrate-III, Coimbatore. The sworn statement of the Power of Attorney Agent of the Complainant and the documents filed by him were perused by the learned Judicial Magistrate-III, Coimbatore and having satisfied that the offence under Section 138 of Negotiable Instruments Act, 1881, is made out, the learned Judicial Magistrate-III, Coimbatore had taken cognizance of the offence and taken the complaint on file as C.C. No. 453 of 2013. Subsequently, after constitution of Fast Track Court to exclusively deal with cases under Section 138 of Negotiable Instruments Act, 1881, the C.C. No. 453 of 2013 was transferred to the Court of the learned Judicial Magistrate – Fast Track Court-I and re-numbered as C.C.No.14 of 2014. After re-numbering the complaint, summons were issued to the Accused and he appeared before the Trial Court.5. On appearance of the Accused, copies of the documents filed by the Complainant were furnished to him as required under Section 207 of the 3/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Code of Criminal Procedure and the Accused was questioned. The Accused denied the charges and claimed to tried. Therefore, trial was ordered. The Power of Attorney Agent of the Complainant C.L. Joseph examined himself as P.W-1 and the Complainant was examined as P.W-2. Ex.P-1 to Ex.P-5 were marked as documents. Ex.P-1 is the copy of the Power of Agent deed dated 19.08.2013. Ex.P-2 is the cheque dated 14.03.2013 for Rs.30,00,000/- bearing Cheque No.109685 drawn on HSBC Bank Limited, Race Course Branch, Coimbatore. Ex.P-3 is the written memo dated 10.06.2013. Ex.P-4 is the statutory notice issued by the Complainant on 05.07.2013. Ex.P-5 is the postal acknowledgment card. Ex.P-6 is the reply notice dated 25.07.2013. P.W-1 and P.W-2 were cross examined on behalf of the Accused. After closing of the evidence of the Complainant, the Accused was examined under Section 313 Cr.P.C. The Accused denied the incriminating evidence against him and disputed the claim of the Complainant regarding issuance of cheque for Rs.30,00,000/-.6. After completion of the proceedings under Section 313 of the Code of Criminal Procedure, one Mr. M.N. Rao was examined as D.W-1. The Accused was examined as D.W-2. Ex.D-1 to Ex.D-8 were marked. Ex.D-1 is the stop payment letter dated 04.03.2013 issued for cheque No.109685. Ex.D-4/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 20192 is the copy of Memorandum of Understanding dated 09.11.2013. Ex.D-3 is the copy of the legal notice dated 08.03.2013. Ex.D-4 is the reply notice dated 28.03.2013. Ex.D-5 is the copy of the legal notice dated 07.08.2013 along with postal receipt. Ex.D-6 is the postal acknowledgment card. Ex.D-7 is the stop payment letter dated 04.03.2013 for cheque No.109686. Ex.D-8 is the stop payment letter dated 0403.2013 for cheque No.109684. 7. After completion of evidence and after hearing the arguments of the learned Counsel for the Complainant and the learned Counsel for the Accused, on appreciation of evidence, the learned Judicial Magistrate, Fast Track Court–I, (Magisterial Level) Coimbatore dismissed the complaint and acquitted the Accused as per judgment dated 24.09.2018 passed in C.C.No.14 of 2014. 8. Aggrieved, the Complainant had preferred Criminal Appeal No.507 of 2018 before the Appellate Court questioning the correctness of the order of acquittal. The Criminal Appeal was made over by the learned Principal Sessions Judge, Coimbatore to the Court of the learned I Additional District and Sessions Judge, Coimbatore. After hearing the arguments of both the Appellant/Complainant and the Respondent/Accused, the learned I 5/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Additional District and Sessions Judge, Coimbatore on re-appreciation of evidence had convicted the Accused for the offence under Section 138 of Negotiable Instruments Act, 1881. 9. Questioning the correctness of the Judgment dated 27.04.2019 passed in Criminal Appeal No. 507 of 2018, the Accused had preferred this Criminal Revision.10. Mr. Deepan Udhay, learned Counsel for the Revision Petitioner contended that the Revision Petitioner along with two others had formed a partnership firm. Subsequently, there was dispute between them. Therefore, a Memorandum of Understanding has been entered into between them.Earlier, the Partnership firm had borrowed a sum of Rs.70,00,000/- as loan from the Complainant. At that time, the Accused was not a partner of the firm. As per the Memorandum of Understanding between them, Mr. Saseendran was removed as Partner and in his place, the Accused was inducted. On the date of inducting the Accused as a partner, the liability of the said Saseendran was only Rs.10,00,000/-. The Revision Petitioner as Partner was also bound to discharge his liability only to the tune of Rs.10,00,000/- and he had already issued cheque for the same. While so, no more liability could be fastened on 6/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019the Accused by the Complainant.11.Further it is the submission of the learned Counsel for the Revision Petitioner that two other cheques of the Revision Petitioner were misplaced. Therefore, he had issued notice to his Bank not to advance the amount mentioned in the cheque. The Complainant in this case had issued statutory notice regarding the liability of the Partnership firm, which was disputed by the Accused. Still, the Complainant proceeded with filing of the Complaint before the learned Judicial Magistrate, Fast Track Court-I, Magisterial level, Coimbatore. The Complainant examined himself as P.W-1 and documents were marked. The Accused also let in evidence that he had repaid the loan amount. Notwithstanding the same, the Appellate Court reversed the well considered judgment of acquittal passed by the trial court.12.It is the submission of the learned Counsel for the Revision Petitioner that even though the liability of the Petitioner herein, as newly inducted partner, is limited to Rs.10,00,000/-, the cheque was misused by the Complainant to file this case. Whereas the other Partners of the firm had not been proceeded with any case. Therefore, the judgment of acquittal recorded by the learned Judicial Magistrate No.III, Coimbatore is to be restored.7/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 201913.The learned Counsel for the Revision Petitioner relied on the following reported decisions of the Honourable Supreme Court in support of his contentions.i) Subhash Chand v. State (Delhi Administration) in Criminal Appeal No.50 of 2013ii) Anss Rajashekar v. Augustus Jeba Ananth in Criminal Appeal Nos. 95-96 of 201914.By pointing out the above decisions, it is contended by the learned counsel that as against an order of acquittal recorded by the Trial Court, a Criminal Appeal alone has to be preferred before this Court and the Appeal filed before the Appellate Court itself is not maintainable. 15. Even though notice was issued to the Respondent/Complainant and a counsel also entered appearance, when the Revision Case is taken up for hearing, there was no representation for the Respondent.Point for consideration:Whether the judgment of conviction recorded by the learned I Additional District and Sessions Judge in Criminal Appeal No. 507 of 2018 dated 27.04.2019 is to be set aside as perverse 8/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019warranting interference by this Court?16. Heard the learned Counsel for the Revision Petitioner. Perused the materials placed on record.17. Perused the judgment of the learned Judicial Magistrate, Fast Track Court-I, Magisterial level in Coimbatore in C.C. No. 14 of 2014 dated 24.09.2018. Perused the judgment of the learned I Additional District and Sessions Judge, Coimbatore in Criminal Appeal No.507 of 2018 dated 27.04.2019. Perused the documents under Ex.P-1 to Ex.P-6 and Ex.D-1 to Ex.D-8.18. The dispute is with regard to the amount to be settled by the Accused while entering as a partner in the partnership firm in the place of the outgoing Partner Mr. P.P. Saseendran. His only claim is that he needs to pay only Rs.10,44,462/- and not Rs.30,00,000/- as claimed by the Respondent/Complainant. In other words, the outgoing partner is liable to pay Rs.10,44,462/- and when he was inducted in his place, his liability cannot be over and above Rs.10,44,462/-. Even otherwise, the cheques in question have not been issued by him for a legally enforceable debt or liability and therefore, the complaint under Section 138 of The Negotiable Instruments Act is not 9/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019maintainable. It is also contended that as per the Memorandum of Understanding, the partners are not sharing the liabilities and income equally. They share it at the ratio of 25:75. However, the claim of the Complainant is that he had filed a private complaint for bouncing of cheque issued by the Accused for Rs.30,00,000/-. In reply to the statutory notice of the Complainant, the Accused had disputed the claim of Rs.30,00,000/-. As per the reply notice he is bound to pay the loan availed by the outgoing partner and the claim for payment of Rs.30 lakhs is not legally sustainable. For the entire loan of the partnership firm, none of the partners could be forced to settle the dues. 19. On perusal of Ex.D-3 it is clearly stated that the Complainant, who is also a party to the Memorandum of Understanding, had not followed the terms and conditions of the Memorandum of Understanding which forced the Accused to issue stop payment. The partnership firm was also issued the copy of the Ex.D-3, notice, thereby restraining them from presenting the cheque. While assessing the evidence of the Complainant, it is found that the Complainant had not marked the Memorandum of Understanding reached between the partners of the firm M/s. Exide Industrial Distributors (EID). The Accused had disputed the claim of the Complainant that he issued cheque for 10/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Rs.30,00,000/- to the Complainant. 20. It is the contention of the learned Counsel for the Accused that the loan of Rs.70,00,000/- availed by the partnership firm should be proportionate to all the partners. Whereas the attempt of the Complainant to present the cheque for Rs.30,00,000/- or to collect a sum of Rs.30 lakhs is untenable. Therefore, the Accused had issued a notice calling upon his Bank not to honor the cheque Nos.109684, 109685 and 109686.21. On perusal of the judgment of the learned Judicial Magistrate Fast Track Court-I Coimbatore it is found that the learned Judicial Magistrate had discussed the evidence available through P.W-1 and P.W-2, D.W-1 and D.W2. The learned Judicial Magistrate, Fast Track Court had observed that the signature in the cheque is not disputed and a presumption shall be drawn against the Accused that it is he who has issued the cheque. The initial presumption available under Section 139 of the Negotiable Instrument Act is therefore in favour of the Complainant. After the Complainant evidence was closed, the Accused had entered into witness box and examined himself as D.W-2. The claim of the Accused is that he did not borrow Rs.30,00,000/- and he had not issued cheque in question for discharging any debtor liability as 11/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019alleged by the Complainant. The Brother in law of the Accused was a partner in EID along with two other persons namely Allen Xavier and Roy P.Thomas and they are having their respective shares. Mr. Roy P.Thomas and Allen Xavier are friends. The loan of Rs.70,00,000/- availed by EID is admitted by all the partners. The Memorandum of Understanding under Ex.D-2 is also admitted. Out of the liability of Rs.70,00,000/-, a sum of Rs.20,44,000/- was paid to the brother in law of the Accused P.P. Saseendran and the said amount was received by Accused on behalf of his brother in law. As per the Memorandum of Understanding, the partners agreed to repay their drawings to EID and out of Rs.20,44,000/- Joy P.Thomas agreed to pay a sum of Rs.10,00,000/- to EID. In order to discharge the remaining amount Rs.10,44,462/- the Accused issued his cheque No.109686 drawn on HSBC Bank, Coimbatore. After issuing the cheque, the partners had not followed the terms and conditions in the Memorandum of Understanding and thereby dispute arose between the partners of EID. Hence, the Accused given stop payment letter to his Bank on 04.03.2013. The Accused issued this cheque only to discharge the amount of Rs.10,44,462/- to EID. The claim of the Accused is that he had not at all issued the cheque to the Complainant. In this situation, how the Complainant obtained the cheque No.109685 and availed the cheque amount of Rs.30,00,000/- is not at all known to the Accused. It is 12/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019an admitted position that the Complainant lent the amount of Rs.70,00,000/- to EID and Accused issued cheque bearing No.109686 to EID. However, the Complainant failed to explain about the possession of Cheque in question for Rs.30,00,000/-. 22. Even the Complainant failed to mention the date of loan and explain the rate of interest charged for Rs.70,00,000/-. Further the Complainant failed to explain as to whether he had taken steps against other partners to recover the remaining amount. It appears that only as against the Accused, who was newly inducted into the partnership, proceedings under Section 138 of The Act have been initiated and not as against the other partners. Hence, the Accused cannot be called upon to discharge the loan of Rs.30,00,000/- to the Complainant. The amount claimed in cheque in question is not legally enforcible by law. Hence, the complaint filed by the Complainant is liable to be dismissed. 23. On perusal of the records, it reveals that the Complainant and Accused are known persons and the Complainant lent Rs.70,00,000/- whereas the Accused is not at all a partner at the time when the amount was paid. However, the Accused received the amount of Rs.20,44,000/- for his brother in 13/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019law and it is acknowledged by the Accused under Ex.D-2. The execution of Memorandum of Understanding is not disputed by none of the partners. As per Ex.D-2, the Accused is liable to pay the amount of Rs.20,44,000/- out of which Roy P.Thomas agreed to pay the sum of Rs.10,00,000/-. In order to discharge the remaining amount, Accused issued the cheque bearing No.109686 to EID and this is not disputed by the Accused. However, the cheque in question was not at all issued to the EID and it is not at all mentioned in Ex.D-2. It raise a serious doubt as to how the possession of cheque in question had gone to the Complainant. The cheque in question is not issued by the Accused and therefore, he gave a letter to his bank to stop payment. The Accused gave stop payment letter for cheque bearing No.109686 and cheques bearing Nos.109684 and 109685. 24. The Complainant failed to explain the rate of interest and failed to bifurcate the principal and interest payable by the Accused. It is the settled principle of law that the Accused need not prove the case beyond reasonable doubt. It is enough if he clears the doubt in the mind of the Court. It is not the case of the Complainant that the Accused issued cheque to EID. The Complainant collected the cheque from the EID and filed it. Therefore, the learned Judicial Magistrate arrived at a correct conclusion that the 14/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Complainant had not explained the circumstances which prompted the Accused to allegedly issue the cheques. Hence, the trial court reversed the burden upon the Complainant to explain about the existing liability between the parties. The Complainant is least bothered to prove the reverse policy laid by him. Therefore, the Trial Court came to question that the defense raised by the Accused creates doubt regarding the existing liability, until the contradiction is proved. It is presumed that the cheque in question was issued for legal enforceable debt or liability unless and otherwise the contrary is proved. The initial burden is on the Complainant to prove his case beyond reasonable doubt. In this case, the Complainant did not bother to prove the burden cast upon him. In such circumstances, the defense raised by the Accused is probable and acceptable. Therefore, the learned Judicial Magistrate, Fast Track Court-I Magisterial level dismissed the complaint and acquitted the Accused.25. On Appeal, the learned I Additional District and Sessions Judge, on re-appreciation of evidence held as follows:14. KiwaPl;lhsuplk; M/s. Exide Industrial Distributors epWtdk; U/ 70.00.000/- fld; bgw;Wf;bfhz;Ls;sJ vd;gJ vjpupahy; xg;g[f;bfhs;sg;gl;l epiyapy; nkw;go epWtdj;jpw;F KiwaPl;lhsu; U/ 70.00.000/- fldhf bfhLj;jhu; vd;gij fhl;lf;Toa Mtzj;ij KiwaPl;lhsu; jhf;fy; bra;a ntz;oa 15/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019mtrpak; ,y;iy/ vjpupahy; xg;g[f;bfhs;sg;gl;l r';fjpia KiwaPl;lhsu; epUgpf;f ntz;oa fl;lhak; ,y;iy/ mt;thW jhd; tUk; khz;ig brd;id cau;ePjpkd;w Kd;jPu;g;gpy; nfhol;L fhl;lg;gl;Ls;sJ/15. tHf;F vjpupahy; jhf;fy; bra;ag;gl;l v/k/rh/M2 g[upe;Jzu;t[ xg;ge;jk; gf;fk; 5y; M/s. Exide Industrial Distributors epWtdj;jpd; xt;bthU g';FjhuUk; kw;Wk; vjpupa[k; vt;tst[ bjhif mtutu; g';Ff;F KiwaPl;lhsUf;F bfhLf;f ntz;Lk; vd Fwpg;gpl;L brhy;yg;glhj epiyapy; ,J Fwpj;J k/rh/M4 rl;l mwptpg;gpYk; KiwaPl;oYk; k/rh/M/1. 2 d; rhl;rpfspd; thf;FKyj;jpYk; Fwpg;gpl;L brhy;y ntz;oa mtrpak; ,y;iy/ mnj nghy; fld; bjhiff;F tl;o vt;tst[ vd;gJ Fwpj;J KiwaPl;oYk;. k/rh/M4 rl;l mwptpg;gpYk; Twg;glhjjhy; k/rh/M2 fhnrhiy rl;lg;go jPu;f;fg;gl ntz;oa flDf;fhf bfhLf;fg;gltpy;iy vd Kot[ bra;a ,ayhJ/ mnj nghy; k/rh/M2 fhnrhiy vg;nghJ v';F itj;J KiwaPl;lhsu; trk; vjpup bfhLj;jhu; vd;gJ k/rh/M4 mwptpg;gpYk; KiwaPl;oYk; Twg;glhjJ KiwaPl;lhsupd; fl;rpia ghjpg;gila bra;ahJ/ rpy mw;gkhd fhuz';fis brhy;yp tHf;F Fw;wj;jpypUe;J vjpup jg;gpf;f KoahJ/ rl;l mDkhdj;ij kWjypf;f mw;g fhuz';fis nghJkhdjhf mikahJ khw;W Kiwahtz rl;lj;jpy; bfhLf;fg;gl;l statutory presumption KiwaPl;lhsUf;F rhjfkhf ,Uf;ff;Toa tYthd mDkhd';fs; MFk;/ mtw;iw kWjypg;gJ vd;gJ rhj;jpaf;TWfspd; nkk;gl;l epiyapy; (Preponderance of Probabilities) ,Uf;f ntz;Lk;/ rl;l epiy ,t;thW ,Uf;fpd;w nghJ rpy mw;g fhuz';fis Kd; itj;J rl;l mDkhd';fs; kWjypf;fg;gl;ljhf tprhuiz ePjpkd;wk; Kot[ bra;jJ jtwhdjhFk;/26. The reasoning of the learned I Additional District and Sessions Judge is found unacceptable considering the fact that the Accused was 16/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019inducted as partner of the firm EID just prior to the execution of Memorandum of Understanding. The Memorandum of Understanding agreed between the parties had not been marked on the side of the Complainant. While so, the marking of such document under Ex.D-2 indicates the contention raised by the Accused as his defense is found acceptable. The reason for the Complainant for not marking the Memorandum of Understanding as Exhibit indicates or gives hint that he had wantonly avoided or withheld material information without marking the most important document which fixes liability of the Accused in the place of his brother in law P.P. Saseendran. When the Memorandum of Understanding had not stated about the share of each of the partners towards liability of the partnership firm EID, it is found unnatural. The conduct of the Complainant in not marking the Memorandum of Understanding itself gives an indication that he had not stated the fact fairly. Merely because the Accused signed the cheque and had not disputed the cheque and it gives a presumption to the Court under 118 and 139 of Negotiable Instrument Act, it will not help the Complainant in this case. As per the averments in the Complaint, it is a partnership firm which had availed the loan. Each of the partners agreed to settle the loan of the partnership firm. If that be so, the liability is to be shared equally or according to the income derived by each of the partners. Their share is to be settled towards loan in 17/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019equal proportion. In such circumstances, the Complainant seeking to recover the money of Rs.30,00,000/- from P.P. Saseendran or his brother in law Anil Kumar through the cheque issued by Anil Kumar for Rs.10,00,000/- and odd which had been misused as Rs.30,00,000/- by the Complainant is found unacceptable. 27. The learned I Additional District and Sessions Judge in the judgment impugned in this Criminal Revision, observed that when the cheque had been issued by the Accused and the signature of the cheque is not disputed by the Accused then the presumption is to be drawn against him for the amount arrived in the Memorandum of Understanding. Instead, the Complainant had filled up the cheque for Rs.30,00,000/- and presented it. Such an observation cannot be countenanced especially when there are inconsistency in the evidence of the Complainant regarding the liability based on the Memorandum of Understanding. Whereas the Accused had let in evidence and marked Memorandum of Understanding as Ex.D-2 during trial which indicates that the claim of the Accused is fair. The learned I Additional District and Sessions Judge, Coimbatore misdirected himself and reversed the finding of the learned Judicial Magistrate, Fast Track Court-I, Coimbatore, which requires to be interfered with by this Court.18/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019 28. The Appellate Court has all the powers of trial Court except recording the evidence and observing the demenour of the witnesses. If the Trial Judge had arrived at a conclusion, on Appeal or revision by the learned Appellate Judge, the learned Appellate Judge can re-assess the evidence. On the same set of evidence, on re-assessment of evidence, if the learned Appellate Judge arrived at a conclusion which is just opposite to the finding recorded by the learned trial Judge, the Appellate Judge shall disturb the finding of the trial Judge. However, the trial Judge had always got the advantage of observing the demenour of witnesses which is not available for the Appellate Court. Therefore, the reversal of the finding by the learned I Additional District and Sessions Judge, in Criminal Appeal is found perverse. When there is dispute between the partners of the firm, EID without marking Memorandum of Understanding, the attempt of the Complainant to seek relief against the Accused in C.C.No.14 of 2014 is unacceptable.29. The Accused shall let in rebuttal evidence but it is not always necessary for the Accused himself to let in evidence. He can probabilise the defense by weakening the case of the Complainant. as per Section 139 of the Negotiable Instruments Act. By probablizing the defense, the reverse burden is 19/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019on the Complainant to disprove the claim of the Accused but such reverse burden had not been satisfactorily discharged by the Complainant in this case. While so, the Accused is entitled to acquittal as per the ruling of the Honourable Supreme Court in the case of Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441. 30. In this case, the Accused was able to discharge the burden of rebuttal evidence under Section 139 through Ex.D-1 to Ex.D-8. Therefore, as per reported decision in the case of Rangappa vs. Sri Mohan, the burden shifts towards Complainant to disprove the case of the Accused. The Complainant had not discharged the burden to disprove the rebuttal evidence of the Accused. Therefore, the conviction recorded by the learned I Additional District and Sessions Judge, Coimbatore reversing the judgment of acquittal is perverse. 31. As per the amended Section 378 of Cr.P.C. the Appeal against judgment of acquittal is not maintainable before the Court of Sessions. Such appeal ought to have been filed before this Court and with the leave of this Court, the appeal ought to have been filed. Therefore, the entertaining of Appeal by the learned Sessions Judge, itself is not maintainable. On this 20/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019ground also, the judgment of the learned I Additional District and Sessions Judge in reversing the judgment of acquittal by the learned I Additional District and Sessions Judge, Coimbatore is liable to be set aside. Therefore, this revision has to be treated as Appeal and this Court shall consider the judgment of acquittal and confirm the same, as the Complainant has not proved the liability of one of the partners for paying the entire dues. 32. The loan was Rs.70,00,000/- which is proportionately 25% for the partner P.P. Saseendran and 25% for the other partner Roy Thomas and 50% for Allen Xavier. As per the partnership deed, the assets and liabilities shall be shared as 25:25:50 instead, out of Rs.70,00,000/-, Rs.30,00,000/- cheque was misused for the liability against the Accused inspite of the understanding reached as per the Memorandum of Understanding. The Memorandum of Understanding was not at all marked on the side of the Complainant before the trial Court. The Complainant entered the witness box as P.W-2 and the Power of Attorney agent, who filed the complaint on behalf of the Principal/PW2, examined himself as P.W-1. After cross examination when he did not answer the questions put to him in cross examination stating that he does not have the knowledge of those transactions, the original Complainant came forward by filing affidavit. In cases of this nature, actually, the original Complainant 21/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019himself ought to have entered the witness box first. The complaint can be instituted by the Power of Attorney Agent, but the original Complainant, who has knowledge of the facts of the case alone, is competent witness and after letting in evidence through Power of Attorney agent he is estopped from entering witness box. Therefore, deposition of the Complainant, as PW2, also has to be rejected. The learned Judicial Magistrate, Fast Track Court-I Coimbatore had on proper reasoning rejected the evidence of the Complainant and acquitted the Accused. The learned I Additional District and Sessions Judge, had only on presumption under Section 139 convicted the Accused and reversed the judgment of acquittal which is found perverse and is to be set aside.33. On perusal of the copies of the original records, it is found that the original Complainant Kochappan Thomas had himself examined as P.W-2 and not as original P.W-1. Only when P.W-1 Joseph was unable to answer the suggestions of the learned Counsel for the Accused regarding the details of the transaction involving the Principal Kochappan Thomas and the Accused Anil Kumar, he had stepped into the witness box. It is against the accepted principle. The Complainant can lodge a complaint through power of attorney agent but for deposing as a competent witness, the personal knowledge of the 22/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019original Complainant is a requirement under the Indian Evidence Act. The best evidence available to the parties in dispute had to be placed before the Court. The attempt of the original Complainant to avoid the witness box gives a presumption to the Court that the Complainant has something to hide from the Court. When he had realized that examination of P.W-1, Power of Attorney Agent Joseph cannot help him in securing a conviction against the Accused, he had taken the risk of entering the witness box as P.W-2. When the original Complainant was examined as P.W-2, he had admitted in cross examination that the brother in law of the Accused, Saseendran alone is the partner of EID and Accused is not the partner of EID. Also he had admitted that Allen Xavier is a partner of EID along with Saseendran. One Roy Thomas is also a partner along with Saseendran and Allen Xavier. He had admitted that he had not mentioned the date on which the amount of Rs.70,00,000/- was lent to the partnership firm in his legal notice and in the complaint. Also he had admitted that he had not produced any document to prove that he had lent Rs.70,00,000/- to the partnership firm before this Court. Also he had admitted in his cross examination that the quantum to repaid by each of the partners were not mentioned in the legal notice. Thus, it is not known as to how the amount of Rs.30,00,000/- was fixed on the Accused Anil Kumar out of the liability of partnership firm - EID for Rs.70,00,000/-. It is also not known as 23/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019to how the quantum was fixed on the sole Accused in this Complaint Anil Kumar for Rs.30,00,000/-. It was not mentioned in the notice or in the complaint. It is also not known as to how the cheque from the Accused reached the hands of the Complainant and even this was also not mentioned in the complaint or in the statutory notice. PW2 admitted that he was not aware of the notice issued against Allen Thomas by the Accused Anil Kumar in the month of March 2013. The suggestion of the learned Counsel for the Accused that he knew the details of the notice sent by the Accused to Allen Xavier who claims ignorance wantonly, was denied by him. When there was Memorandum of Understanding executed between the partners Allen Xavier, Saseendran and Roy Thomas, there is no necessity for Anil Kumar to issue cheque for Rs.30,00,000/- was denied by him. The suggestion that the Accused owed Rs.10,44,462/- as per the Memorandum of Understanding and not Rs.30,00,000 was also denied by him. The suggestion of the learned Counsel for the Accused that the Accused does not owe any enforceable liability to the Complainant was also denied by him in his cross examination. The Complainant as P.W-2 claimed ignorance that the Accused had issued stop payment to his bank regarding the cheque No.109684. The copy of the Memorandum of Understanding was also not placed by the Complainant to show the bona fide. Therefore, the Court has to draw adverse inference 24/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019regarding the claim of the Complainant that the Accused had issued cheque on behalf of his brother in law in continuation of the Memorandum of Understanding reached between the partners of the firm, EID. To prove such claim, the Complainant has to mark that particular document - Memorandum of Understanding, which document was marked on the side of the Accused as Ex.D-2. Thus, without any document proof the claim of the Complainant regarding prior liability against Anil Kumar, the Accused in C.C.No.453 of 2013 cannot be accepted. When the Complainant relies on Memorandum of Understanding, he is duty bound to mark it as a document to invoke Section 138 of the Negotiable Instruments Act against the Accused who is not a partner of EID, partnership firm. In such cases, merely a cheque was signed and issued it will help the Complainant to invoke Section 138 of the Negotiable Instruments Act to record conviction against the Accused. Even though, the cheque was not filled up and signed by the Accused, how the Accused owes Rs.30,00,000/- has to be explained by the Complainant both in his statutory notice as well as in the complaint. The complaint is bereft of such details. For the liability of the partnership firm for Rs.70,00,000/- which they owe to the Complainant, the Complainant seeking Rs.30,00,000/- from one the Accused, who is the brother in law of erstwhile Partner Saseendran. As per the claim of one of the partners, Memorandum of Understanding reached 25/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019between the partners Saseendran, Allen Xavier and Roy Thomas. Saseendran and Roy Thomas owe 25% of the assets and liabilities of the firm. Allen Xavier owes 50 % of the assets and liabilities of the partnership firm and Allen Xavier was the long time School friend of the Complainant right from his school days. For the liability of the partnership firm for Rs.70,00,000/- fixing the quantum of Rs.30,00,000/- on the head and shoulders of Accused is not proper without any acceptable reasons or without any cogent reasons to be placed before the Court of law. Just because a unfilled duly signed cheque was issued to the partners, which was utilized or exploited by the Complainant will not help the Complainant to secure conviction against the Accused. When the Accused sensed that his cheque would be exploited either by Allen Xavier or his friend, he had alerted his bank by issuing a letter for stop payment which cannot be faulted. The Complainant as well as the Accused are aware of the consequences of issuing unfilled duly signed cheques. As per the Accused, the Complainant herein is not the holder in due course. It was issued to the partnership firm in tune with the Memorandum of Understanding signed between the partners under Ex.D-2, whereas the Complaint had been filed by the Accused suppressing Ex.D-2/Memorandum of Understanding . Therefore, the Complainant has not approached the Court with clean hands. The relevant portion of Memorandum of Understanding are as follows:-26/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 20195) Though Saseendran has already resigned from “AARBEE” by executing a deed of retirement for the purpose of banking operation, This retirement is only for some technical purpose and it is agreed that this retirement will be effective only if all the amount due as capital and profits to Saseendran as a partner is paid by Mr.Roy. As a financial and functional representative of Mr.Saseendran all the amounts due shall be settled to Mr. Anil. 6) Mr.”ROY” has pledged his immovable property for securing the bank loan obtained by the firm “EID” and this property has to be released. 7) To overcome the present crisis in EID, the parties here to has to repay their drawing to EID which shall be used only as per the clauses of this MoU before 20th November 2010.a. Mr. Allen XavierRs.18,35,154/-b. Mr. AnilRs.20,44,462/-c. Mr.Roy ThomasRs. 9,68,353/-8) Mr.Roy Thomas will pay Rs.10,00,000/- out of the amounts payable to Mr.Anil under clause No.5 to M/s. EID on behalf of Mr.Anil, which EID will receive as a repayment of Drawings of Mr.Anil and the Balance Rs.10,44,462/- will be paid by Mr.Anil to EID. The parties of this MoU has issued the following cheques for the above referred payments.8 a) Cheque No.591135 drawn on the South Indian Bank, Trichy road Branch, Coimbatore (Bank account of Mr. Allen) for Rs.18,35,154/-b) Cheque No.339028 drawn on State Bank of India, R.S. Puram Branch, Coimbatore 641002 (Bank account of Mr.Roy Thomas) for Rs.19,68,353/-c) Cheque No.109686 drawn on HSBC Bank, Coimbatore Branch, Coimbatore Branch, Coimbatore (Bank Account of Mr.Anil Kumar) for Rs.10,444,62/-27/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 20199) EID has subscribed to a chit for a value of approximately for Rs.20,00,000/- and it was decided to take the prize money of this chit in the month of December 2010.10) Mr. Sunny Thomas has given a loan of Rs.70,00,000/- to EID which to be repaid along with the Interest. All the partners including Mr.Anil agrees that they are responsible to repay this loan along with interest before 25.12.2010.11) All the monies received by EID under Clause No.7, 8 and 9 shall be used to settled the loan with interest of Mr.Sunny Thomas and the Bank loan with interest (to the extent possible)12) Once all the obligations of this agreement is completed then EID will be closed or run as per the decisions of the parties to this agreement.13) This agreement embodies the entire understanding of the parties as to its subject matter and shall not be amended except in writing executed by both parties.14) All disputes, questions of differences etc arising in relation to this agreement shall be refereed to a single arbitrator Mr.P.Mahendran, Chartered Accountant, S/o. N. Perumalswamy, 1533, Trichy Road, Coimbatore in accordance with and subject to the provisions of the Indian Arbitration and Reconciliation Act and the arbitration proceedings shall be held in Coimbatore. The Arbitration award will be completely binding on the parties of this agreement.15) Notices and other communications under the agreement shall be in writing addressed as indicated in the description of parties above and the communication shall be in registered post with acknowledgment.34. The Accused had issued notice dated 08.03.2013 to Allen Xavier indicating that 28/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 20192. the cheque No.109686 in A/c No.115060576-006 to M/s.Exide Industrial Distributors as per the MoU between P.P.Saseendran 2) Allen Xavier 3) Roy Thomas 4) Anil Kumar dated 09.11.2010. 3. Since you did not show any account to Mr.Saseendran, since you have violated the MoU. My client was forced to stop payment of the above cheque on 04.03.2013 with the Bank. 4. Under the above circumstances, you are hereby called upon not to present the cheque for collection. You are adviced to present the cheque only after the account settlement between you all as per the MoU dated 09.11.2010 please take notice accordingly.”35. The copy of the notice was served on the Inspector of Police (Crime), B-7, Police Station Pulyakulam, Coimbatore, Assistant Commissioner of Police (East) Singanallur, Coimbatore, Deputy Commissioner of Police (Crime), Coimbatore City, Commissioner of Police, Commissioner City, Director General of Police, Dr.Radhakrishnan Road, Mylapore, Chennai, Hon'ble Chief Minister Grievance Cell, St.George Fort, Chennai. For the Notice dated 08.03.2013, Allen Xavier had issued reply on 28.03.2013 through Advocate Mr.R.Kanagaraj, where Allen Xavier disputed the claim directing the Accused Anil Kumar to meet the Auditor/Chartered Accountant. In continuation of the same, Anil Kumar had issued notice dated 07.08.2013 to Mr.P.Mahendran, Chartered Accountant regarding the difference of opinion in the Partnership firm and the cheque issued by Accused in cheque No.109686 drawn on HSBC Bank, for the sum of Rs.10,44,462/- handed over to 29/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Mahendran, Chartered Accountant. It was also agreed that the cheque shall be used after the firm is able to finalise the accounts while producing profit and loss, Balance sheet etc. Till date no such steps have been taken by the firm, therefore directed the Chartered Accountant to return the cheque bearing No.109686. Instead Kochappan Thomas had proceeded with the complaint and issued statutory notice as though Accused owed Rs.30,00,000/- . Since he had suppressed the Memorandum of Understanding regarding the dispute between the partners in EID partnership firm, the Court has to necessarily draw adverse inference against the Complainant. Merely the Accused had signed the cheque and issued it, it will not help the Complainant to raise a presumption against the Accused. As per the notice issued by the Accused under Ex.D-3, Ex.D-4 and Ex.D-5 it indicates that there is no liability. The Accused had discharged the burden of proving the rebuttal evidence under Section 139 of the Negotiable Instruments Act. Therefore, the learned Judicial Magistrate had recorded acquittal against he Accused. The learned III Additional District and Sessions Judge had failed to appreciate the evidence, in the light of the document under Ex.D-1 to Ex.D-8 and merely on the basis of the presumption under Section 139 of the Negotiable Instruments Act, reversed the finding of acquittal and thereby recorded the finding of guilt against the Accused which is found perverse.30/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019 36. Since it is judgment of acquittal, the Appeal against the acquittal had to be preferred only before the High Court and not before the Sessions Court. Therefore, the learned I Additional District and Sessions Judge taking up the Appeal for consideration itself is an illegality. The Appeal itself was not maintainable. The Accused had preferred this Criminal Revision under Section 397 r/w. 401 of Cr.P.C. Therefore, this Court has to exercise the power of revision under Section 401 of Cr.P.C to re-assess the evidence. Accordingly, this Court had call for records and perused the records and found that the appreciation of evidence was proper by the learned Judicial Magistrate, Fast Track Court-I, Coimbatore in C.C.No.14 of 2014 whereas the learned Sessions Judge, without jurisdiction considered the argument of the learned Counsel for the Complainant/Appellant and reversed the finding of the learned Judicial Magistrate, Fast Track Court-I, Magisterial level, Coimbatore. Also, it is against the principles regarding re-appreciation of evidence by the Appellate Judge. The Appellate Court shall appreciate the judgment of acquittal with caution. It shall not reverse the finding of acquittal without proper assessment of evidence. Even with the same set of evidence, the learned Appellate Judge arrived at the different conclusion but it shall not trust its conclusion on the finding of the trial Judge. As per the decision of the 31/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Honourable Supreme Court judgment, as against acquittal recorded in a private complaint, an Appeal lies only to the High Court and this was not considered by the learned Sessions Judge. Therefore, this Court exercising the powers of revision under Section 401 of Cr.P.C treated this revision as Appeal, perused the original records and re-assessed the evidence on the same set of evidence. On re-assessing the evidence, it is found that the Complainant had not approached the Court with clean hands. He has, with ulterior motive, filed the complaint through his Power of Attorney and allowing his Power of Attorney to let in evidence on his behalf which is also against the reported decision of the Honourable Supreme Court.37. In the light of the above discussion, the point for consideration is answered against the Complainant and in favour of the Accused. The judgment dated 27.04.2019 passed in Crl. A. No. 507 of 2018 on the file of the learned I Additional District and Sessions Judge, Coimbatore is found perverse and is to be set aside.In the result, this Criminal Revision Case is allowed. The judgment dated 27.04.2019 passed in Crl. A. No. 507 of 2018 on the file of the learned I Additional District and Sessions Judge, Coimbatore is set aside. The 32/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019Judgment of acquittal dated 24.09.2018 passed in C.C. No. 14 of 2014 on the file of the Fast Track Magistrate-I, Coimbatore is restored. 02.06.2025shlIndex: Yes/NoInternet: Yes/NoSpeaking/Non-speaking orderNeutral Citation : Yes/No To 1. I Additional District and Sessions Court, Coimbatore2. The Fast Track Magistrate-I, Coimbatore.3. The Section Officer, Criminal Section, High Court Madras.33/34 https://www.mhc.tn.gov.in/judis Crl.R.C.No.487 of 2019SATHI KUMAR SUKUMARA KURUP , J shlOrder made inCrl.R.C.No.487 of 201902.06.202534/34