M/s.Elfotech Electro Chemicals Ltd. v. M/s.Jain Bro. Gas Refilling (P) Ltd.

Crl.O.P.No.17360 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.07.2024CORAM :THE HONOURABLE MR. JUSTICE M. DHANDAPANICrl.O.P.No.17360 of 2024inCrl.A.SR.No.28897 of 2024M/s.Elfotech Electro Chemicals Ltd.,Rep. by its Director, Mr.Kanaksurana, Factory Plot at No.84, Opposite PIPDIC, Industrial Estate, Kirumampakkam, Bahour Commune, Pondicherry.... PetitionerVs.

M/s.Jain Bro. Gas Refilling (P) Ltd., Head Office 92/3, Basant Balwant Market, Chaudhary More, G.T.Road, Gazhiabad, U.P., Rep. by its Managing Director.

Vinodkumar Jain @ V.K.Jain3.Shashi Jain... Respondents/A1 to A3Prayer in Crl.O.P.No.17360 of 2024 : Criminal Original Petition filed u/s. 378(4) of the Code of Criminal Procedure, seeking to grant special leave to the petitioner/appellant to appeal from judgment and order of Page No.1 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17360 of 2024acquittal in C.C.No.128 of 2008 passed by the learned II Additional District Munsif at Puducherry (Conferred with the powers of the Magistrate).Prayer in Crl.A.SR.No.28897 of 2024 : Criminal Appeal filed under Section 378 of the Code of Criminal Procedure Code, to set aside the acquittal order of the learned II Additional District Munsif at Puducherry (Conferred with the powers of the Magistrate) in C.C.No.128 of 2008 dated 22.12.2023 and convict the accused/respondents. For Petitioner: Ms.Akshayaa Benjamin*****ORDERThis Criminal Original Petition has been filed seeking to grant special leave to the petitioner to file an appeal against the impugned order passed by the learned II Additional District Munsif at Puducherry (Conferred with the powers of the Magistrate) in C.C.No.128 of 2008 dated 22.12.2023.2.

Learned counsel for the petitioner submitted that the trial court acquitted the respondents/accused solely on the ground that there was a material alteration in the cheque/Ex.P.3. She also submitted that the alteration is only in respect of part portion of the name of the company i.e., Chemicals Limited and the cheque amount written in words. Except these alterations, no other alteration is made in the cheque/Ex.P.3 and the said alteration is not affected u/s 87 of the N.I. Act. However, the trial court held that there is a material alteration, without the consent of the accused/drawer by referring Section 87 of the N.I. Act, which has Page No.4 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17360 of 2024affected the petitioner's case. Further, she submitted that the accused had not denied his signature in the cheque/Ex.P.3 and not denied the issuance of cheque to the petitioner though they stated that the cheques was issued as a security as per the MOU to the petitioner, they have not adduced proper evidence to prove their case. Once the signature was admitted and failed to prove their case by the accused, the petitioner is entitled for statutory presumptions in favour of the petitioner and the burden to rebut the said presumption is upon the accused, however, the accused had not rebutted the presumption by adducing appropriate evidence. Therefore, interference is warranted with the findings recorded by the court below.

This Court heard the learned counsel for the petitioner and perused the entire materials placed on record, including the impugned order passed by the Court below.

It is the consistent ratio laid down that grant of leave is not a matter of right; rather it is the edifice on which the liberty of the person, who has seen accused of a crime rests and where a person, who had been accused of a crime had been acquitted by the court below, a presumption Page No.5 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17360 of 2024follows the golden rule that a person is presumed innocent until proven guilty and on that basis the second presumption on the basis of the acquittal necessitates the appellate court to scrutinize the materials more carefully. Further, grant of leave to the prosecution should not be as a matter of routine, but should be on just and equitable basis, when materials reveal that the court below has not appreciated the materials in proper prospective.

Grant leave provided for u/s 378(4) is not an empty formality, but has been brought into the statute only to safeguard the interests of the persons accused of a crime, who have since been acquitted, as otherwise, they would be put through the rigours of continuous litigation even after their innocence has been accepted by the trial court.

With the above in mind, a perusal of the entire records reveals that, in the complaint, the petitioner claimed that the 2nd respondent issued a cheque/Ex.P.3 for payment of the due amount payable to the Electricity Department, Pondicherry and the Central Excise Department and Sales Tax Department, Pondicherry in favour of the petitioner. The Page No.6 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17360 of 2024main issue for consideration in this matter is whether the cheque issued in favour of the petitioner for the due payable to the Electricity Department, Pondicherry and the Central Excise Department and Sales Tax Department, Pondicherry is a legally enforceable debt or not. In the cross-examination, the petitioner deposed in respect of MOU for purchasing the petitioner company by the respondents and in order to clear the dues payable to the Electricity Department and the Central Excise Department and Sales Tax Department, Pondicherry, the 2nd respondent issued a cheque in favour of the petitioner. Unless the sale is concluded in between the petitioner and the 1st respondent and it is conveyed in favour of the respondents, then it is the duty of the 2nd respondent to pay the dues to the petitioner. However, in the present case, mere MOU will not confer the petitioner to claim amount from the 2nd respondent. It is only an informal arrangement in between the petitioner and the 1st respondent. Therefore, it is not legally enforceable debt and apart from that, there was a material alteration in the cheque/Ex.P.3, which was admitted by the petitioner before the trial court and his over-writting the part portion of the company's name viz., Chemicals Ltd and twenty five lakhs in words. A perusal of the Page No.7 of 10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17360 of 2024cheque/Ex.P.3, it is found that the cheque was dated 15.07.2005 and subsequently it has been altered as 15.12.2005. The altering of No.7 into No.12 is amount to material alteration and the same was not affirmed by the drawer of the cheque and the said material is contrary to Section 87 of the N.I. Act. Hence, the trial court dismissed the complaint by the petitioner, which cannot be said to be perverse, illegal or arbitrary.

Further, in order to grant leave, a case should be made out, but the present case bristles with infirmities which strikes at the root of the findings recorded. Further, in the case on hand, the petitioner, has not made out of a case, where the findings are so very perverse that there has been miscarriage of justice wrranting this Court to grant leave to set right the wrong that has been committed by the court below.