High Court · 2025

Crl.A.No.579 of 2022IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.11.2025CORAM : THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYCrl.A.No.579 of 2022M.Sridevi.. AppellantVersusA.K.Meenambal.. RespondentPrayer : Criminal Appeal filed under Sections 378 of Cr.P.C., to set aside the lower Court's judgment, dated 23rd February, 2021 in the case of C.C.No.578 of 2016 at the Court of Judicial Magistrate Fast Track Court (Magisterial Level), Alandur.For Appellant: Mr.B.JawaharFor Respondent: Mrs.M.Abinu Monisha for Mrs.Shyamaladevi1/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022JUDGMENTThis Criminal Appeal is filed aggrieved by the judgment of the learned Judicial Magistrate, Fast Track (Magisterial Level), Alandur, dated 23.02.2021 made in C.C.No.578 of 2016. By the said judgment, the respondent/accused was acquitted of an offence under Section 138 of the Negotiable Instruments Act, 1881. 2. This is a private complaint filed by the appellant/complainant under Section 200 of the Code of Criminal Procedure. The case of the appellant/complainant is that the respondent/accused and her husband borrowed a sum of Rs.1,00,000/- on 08.05.2013 and agreed to repay the same with an interest at the rate of 24% per annum. In consideration thereof, the respondent/accused also executed a promissory note. Thereafter, they failed to pay the interest regularly and they did not pay the principal amount also. Therefore, from the month of June, 2013 till the month of March, 2016 for a period of 33 months, the interest of 24% per annum comes to Rs.66,000/-. Adding along with the principal, a cheque was also issued on 07.03.2016 for a sum of Rs.1,66,000/-. When the same was presented, it was returned dishonoured with an endorsement 'funds 2/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022insufficient'. When a statutory notice was issued on 01.04.2016, after receiving the same, without making payment, the respondent/accused issued a reply notice containing false particulars. 3. Upon recording the sworn statement, the complaint was taken on file. Summons were issued to the respondent/accused. Upon appearance of the respondent/accused, copies were furnished and upon questioning, the respondent/accused denied the imputations and stood trial. In order to bring home the charge, the Power of Attorney Agent of the appellant/appellant/complainant, being her husband, Muthukumar, was examined as P.W.1 and Ex.P-1 to Ex.P-6 were marked. The Power of Attorney was marked as Ex.P-1. The promissory notice was marked as Ex.P-2. The subject matter cheque was marked as Ex.P-3. The return memo was marked as Ex.P-4. The legal notice was marked as Ex.P-5. The acknowledgment card as Ex.P-6. 4. Upon being questioned about the incriminating evidence and materials on record under Section 313 of the Code of Criminal Procedure, the respondent/accused denied the same as false. Thereafter, the Manager 3/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022of Canara Bank, Adambakkam branch, was examined as D.W.1. The husband of the respondent/accused, Kulandaivelu, was examined as D.W.2. Santhosh Kumar, the official from the State Bank of India, Tambaram branch, was examined as D.W.3 and another official from Canara Bank namely, one Prakasam, was examined as D.W.4. The Trial Court considered the case of the parties. The Trial Court held that by due cross-examination of the appellant/appellant/complainant and also by letting in evidence, it was proved to the level of preponderance of probability that it is possible that the respondent/accused borrowed the sum only in the year 2012 and thereafter, has been repaying the amount and that the appellant/complainant has used the blank promissory note and the cheque which were handed over at that time and has filed the present case and granted the benefit of doubt to the respondent/accused and acquitted the respondent/accused. As against which, the Criminal Appeal is filed.5. Mr.B.Jawahar, the learned Counsel for the appellant/complainant, straightaway strongly relying upon the reply notice issued by the respondent/accused, would contend that firstly, in the reply notice, it is not specifically denied that the respondent/accused had taken 4/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022loan of Rs.1,00,000/- as on 08.05.2013. As a matter of fact, the reply notice admits a sum of Rs.1,00,000/- being taken by way of loan and it states that various sums have been repaid. It further states that the respondent/accused will also pay the principal amount and the interest amount due in the coming months. Therefore, when the respondent/accused had neither denied the borrowal, as a matter of fact, admitted their liability and issued a reply notice, the Trial Court erred in mixing up an earlier transaction that happened in the year 2012 and acquitted the respondent/accused. Merely because in the complaint, the earlier transaction is not expressly mentioned, the same will not conclusively prove the defence of the respondent/accused or disprove the case of the appellant/complainant. The appellant/complainant has proved his case by producing the cheque and by proving the ingredients of the offence under Section 138 of the Negotiable Instruments Act, 1881. 6. To corroborate the advancing of loan, the promissory note is also marked as Ex.P-2. Therefore, when the presumption under Sections 118 and 138 of the Negotiable Instruments Act, 1881 arises in favour of the case of the appellant/complainant, the respondent/accused had not done 5/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022anything to rebut the presumption. The evidence let in by the respondent/accused in the form of D.W.1 to D.W.4 is relating to the earlier transaction and that has got nothing to do with the borrowal in the year 2013 and the cheque being issued in discharge of the liability. Therefore, the Trial Court misdirected itself in taking that evidence into consideration. 7. In any event, P.W.1 had only stated that he had full knowledge about the current transaction and when he was repeatedly questioned about the earlier transaction only, P.W.1 had stated that he did not remember the other transactions. That ought not to have taken as an adverse answer by the Trial Court. When the appellant/complainant has also marked the promissory note and when it is the plea of the respondent/accused that she had earlier borrowed and a loan was discharged, in the absence of production of any discharge receipt or the action on the part of the respondent/accused in even asking for the return of the cheque, the defence taken is only opportunistic and to wriggle out of the criminal liability, the judgment of the Trial Court has to be set aside.8. Per contra, Mrs.M.Abinu Monisha, the learned Counsel for the 6/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022respondent/accused, by pointing out to the judgment of the Trial Court, would submit that the earlier transactions were ongoing as per the defence exhibits and the respondent/accused was repaying the amount and those payments are being proved by marking Ex.D-1 to Ex.D-9, the Trial Court is right in considering that the entire transaction is singular in nature. Upon being questioned, specifically about the borrowal in the year 2012 and the repayment thereof, P.W.1 has categorically answered that he did not know or remember about the transaction between his wife and the respondent/accused. In view of the said answer, it can be seen that the respondent/accused has established to the level of preponderance of probability of his defence and therefore, the Trial Court is right in acquitting the respondent/accused.9. I have considered the rival submissions made on either side and perused the material records of the case.10. In this case, by proving the other ingredients of the offence under Section 138 of the Negotiable Instruments Act, 1881 and by marking the cheque as well as the promissory note, the appellant/complainant has 7/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022discharged her initial onus. The only question to be decided is that whether the respondent/accused has rebutted the presumption and created any doubt in the case of the appellant/complainant or disproved the case of the appellant/complainant. The dispute is with reference to the legally enforceable debt. The case of the appellant/complainant is that the borrowal is of the year 2013 as cash and in repayment of the entire principal as well as the interest, the cheque has been issued. In this regard, while the cheque is filled up by calculating the entire interest as 33xRs.2000/- = Rs.66,000/-, by adding the principal as Rs.1,66,000/-, the appellant/complainant himself states that the respondent/accused was irregular in payment of interest and did not say that the respondent/accused never paid any interest. That is the first difficulty in the case of the appellant/complainant. 11. Be that as it may, when the respondent/accused has questioned the P.W.1 as to whether he knew about the earlier transaction in the year 2012, P.W.1 states that he does not remember anything. If he does not have personal knowledge of the transaction between the appellant/complainant and the respondent/accused, then it was necessary to 8/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022examine the principal/complainant. When the power of attorney has limited knowledge and complainant does not get into the box, the same is an adverse circumstance against the complainant. Per contra,D.W.2, the husband of the respondent/accused claimed knowledge of the transaction and deposed that the borrowal was made on a prior date and the amounts were repaid. Thus, it has to be held that the respondent/accused has rebutted the presumption to the level of preponderance of probability. Further, the concerned officials of the bank were examined. The bank statement evidencing the payment of several amounts of money was marked. It is claimed that as against the borrowal of Rs.1,00,000/-, the appellant/complainant is said to have made deductions and paid only Rs.75,500/-. The respondent/accused claims to have paid about Rs.1,40,795/- in total which is inclusive of interest etc.. Thus, it can be concluded that the respondent/accused has raised a reasonable doubt in the case of the appellant/complainant. Accordingly, when the presumption has been duly rebutted and a reasonable doubt arises in the case of the complainant. Further, the statement of accounts and also the statement receipts in the form of cash challans are also marked,. For all the above reasons, the view taken by the Trial Court, giving the benefit of doubt to 9/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022the respondent/accused, cannot be said to be an impossible view or a perverse view.12. Accordingly, finding no merits, this Criminal Appeal stands dismissed. 19.11.2025Neutral Citation: nogrsToThe Judicial Magistrate,Fast Track Court (Magisterial Level), Alandur.10/11 https://www.mhc.tn.gov.in/judis Crl.A.No.579 of 2022D.BHARATHA CHAKRAVARTHY, J.grsCrl.A.No.579 of 202219.11.202511/11