High Court · 2025

Crl.A.No.27 of 2023 IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on : 14.08.2025Pronounced on : 21.08.2025CORAMTHE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.A.No.27 of 2023S.K.Srinivasan...Appellant Chithramughi... RespondentPrayer: Criminal Appeal filed under Section 378 of Cr.P.C., praying to set aside the order dated 27.10.2022 passed by the Metropolitan Magistrate, Fast Track Court-I, Egmore @ Allikulam, Chennai in CC.No.3392 of 2012. For Appellant : Mr.N.BaaskaranFor Respondent: Mr.Jayasimhan T.RajasuriyaJUDGMENTThis criminal appeal has been preferred against the judgment passed in CC.No.3392 of 2012 dated 27.10.2022 on the file of the Metropolitan Magistrate Fast Track Court No.1, Egmore at Allikulam, 1/10 https://www.mhc.tn.gov.in/judis 2Chennai thereby acquitting the respondent for the offence punishable under Section 138 of NI Act and dismissed the complaint.2.The appellant is the complainant, who lodged complaint for the offence punishable under Section 138 of NI Act against the respondent alleging that the respondent borrowed a sum of Rs.5,00,000/- on 12.11.2009 by execution of pronote. Thereafter, towards the discharge of the liability, she issued cheque dated 02.01.2012 for a sum of Rs.5,00,000/- and the same was presented for collection. However, it was returned dishonored for the reason 'funds insufficient' on 10.04.2012. After issuance of legal notice, the appellant filed complaint and the same was taken cognizance by the trial court. 3.In order to prove the complaint, the appellant had examined himself as PW1 and marked Ex.P1 to Ex.P6. On the side of the respondent, she had examined DW1 and DW2 and marked Ex.D1 to Ex.D7. On perusal of oral and documentary evidences, the trial court found the respondent not guilty for the offence punishble under section 138 of NI Act and acquitted her. Aggrieved by the same, the present 2/10 https://www.mhc.tn.gov.in/judis Crl.A.No.27 of 2023criminal appeal has been filed by the complainant. 4.The learned counsel for the appellant would submit that the respondent did not deny the signature found in the cheque and the issuance of the cheque. Therefore, the appellant discharged his initial burden as contemplated under Section 138 of NI Act. Though the respondent had made a suggestion while cross examination of PW1, the respondent failed to rebut the presumption. Though the statutory notice was duly received on the side of the respondent, the respondent failed to issue any reply notice to rebut the initial presumption. Though the respondent marked Ex.D6 ie, sale deed, which was executed by the appellant as power of attorney of the respondent, it has nothing to do with the complaint lodged by the appellant. The case of the appellant was that after pledging jewels with Muthoot Fincorp Limited, he lent loan to the respondent. It was clearly proved from Ex.D7, which is the gold loan ledger, marked through DW2. DW2 deposed representing Muthoot Fincorp Limited, Anna Nagar, Chennai. One of the jewels was pledged in the name of the appellant's brother and as such, the trial court concluded that non examination of the appellant's brother is fatal to the case and it is 3/10 https://www.mhc.tn.gov.in/judis 4very unfortunate since the brother of the appellant is in no way connected to the present transaction. On the date of the borrowal of loan, the respondent executed pronote and the same was marked as Ex.P1. After issuance of the cheque, there was endorsement in the pronote. The respondent also did not deny the signature found in the pronote. Even according to the appellant, the loan was lent by pledging his jewels. Therefore, no need to prove his source of income to lend the loan amount. As such, the trial court ought not have acquitted the respondent.5.Per contra, the learned counsel for the respondent would submit that though the respondent did not receive any statutory notice, the trial court did not acquit the respondent on the ground of non service of statutory notice. The complainant filed statutory notice and an acknowledgment as if someone had received the statutory notice. If at all any staturory notice was served on the respondent, definitely the respondent would have issued reply notice. In fact, only after issuance of non-bailable warrant by the trial court, the respondent was informed about the non bailable warrant and thereafter the respondent appeared before the trial court. Therefore, the respondent had absolutely no 4/10 https://www.mhc.tn.gov.in/judis Crl.A.No.27 of 2023knowledge about the presentation of cheque, issuance of statutory notice and lodgment of complaint. During the cross examination, the appellant categorically deposed that he had income only to the tune of Rs.25,000/- per month and the annual turn over of his entire business was only Rs.5,00,000/-. Therefore, the appellant had absolutely no income to lend such a huge amount to the tune of Rs.5,00,000/-. 5.1He further submitted that the respondent already had executed power of attorney in favour of the appellant to deal with the property owned by the respondent. On the strength of the power of attorney, the appellant had sold the property owned by the respondent to a third party. Therefore, at that juncture, in order to avail loan from a third party, the respondent handed over a signed blank cheque and a pronote. Both were misused by the appellant and proceedings under Section 138 of NI Act was initiated. During the detailed cross examination, the respondent categorically rebutted the presumption and the trial court rightly acquitted the respondent. As such, the order of acquittal does not warrant any interference by this Court.5/10 https://www.mhc.tn.gov.in/judis

66.Heard, the learned counsel appearing on either side and perused, all the materials placed before this Court.7.The specific case of the appellant was that he lent a sum of Rs.5,00,000/- as loan to the respondent by cash on 02.01.2012. On the date of the borrowal itself, the respondent had executed pronote which was marked as Ex.P1. The cheque was marked as Ex.P2 and on perusal of Ex.P1 and Ex.P2, the signatures and the other letters in both the documents are different from one another. After issuance of pronote and cheque, both were filled up. On perusal of Ex.P1, it is also revealed that it contains the cheque details. But according to the appellant, the pronote was executed on the date of the borrowal ie., 12.11.2009 and the cheque was issued only on 02.01.2012. Therefore, the case of the appellant that on the date of the issuance of the cheque, it was endorsed in Ex.P1, cannot be legitimate. 8.Further, though the cheque was issued on 02.01.2012, it was presented for collection only on 07.04.2012. It creates doubt that whether the cheque was issued for any legally enforceable debt. The alleged 6/10 https://www.mhc.tn.gov.in/judis Crl.A.No.27 of 2023borrowal of loan was on 12.11.2009, that too by way of cash. Ex.P1 and Ex.P2 were handed over to the appellant for the purpose of security to redeem the jewels temporarily by the appellant to visit his father-in-law's house since his wife was pregnant and his father-in-law would question about the missing of jewels. Therefore, the appellant assured that the cheque and the pronote will be returned after re-pledging the jewels. In order to substantiate the said defence, the respondent had examined DW2 who was representing Muthoot Fincorp Limited. He produced gold loan ledger which was marked as Ex.D7 to show that the jewels were pledged by the appellant and his brother. It further reveals that the jewel loan was availed only on 07.07.2010 and it was once again redeemed on 21.07.2010. On the same day, two jewel loans were availed, that too by the appellant's brother one, S.K.Gowri Shankar. Again on 14.08.2010, another jewel loan was availed by the appellant's brother. Only one loan was availed in the name of the appellant on 14.08.2010 for a sum of Rs.5,44,000/-. Bu the alleged loan was lent by the appellant on 12.11.2009 i.e. much prior to the date of the jewel loan. 9.The appellant also categorically admitted that his monthly 7/10 https://www.mhc.tn.gov.in/judis 8income was only Rs.25,000/- from his business and he was also receiving monthly rent of Rs.6,000/- for his property. He also admitted that he used to borrow loan for his business purpose very often. Therefore, the appellant failed to prove his financial capacity to lend such a huge amount, ie., Rs.5,00,000/- to the respondent. It is also evident that the respondent had executed power of attorney in favour of the appellant to deal with the property owned by the respondent. On the strength of the power of attorney, the appellant sold the land to a third party. Therefore, there was no need to borrow any loan by the respondent, that too from the appellant. Hence, Ex.P2 was not issued for any legally inforceable debt. While being so, the appellant failed to prove that the cheque was issued for a legally enforceable debt by any evidence. Further, by detailed cross examination, the respondent categorically rebutted the presumption under Sections 118 and 139 of NI Act and as such, the trial court rightly acquitted the respondent for the offence punishable under Section 138 of NI Act. 10.In view of the above, this Court finds no infirmity or illegality in the impugned judgment. As such, this criminal appeal fails 8/10 https://www.mhc.tn.gov.in/judis Crl.A.No.27 of 2023and the same is liable to be dismissed. Accordingly, this criminal appeal is dismissed. 21.08.2025Index: Yes/NoNeutral citation: Yes/NoSpeaking/non-speaking orderlokToThe learned Metropolitan Magistrate, Fast Track Court-I, Egmore @ Allikulam, Chennai G.K.ILANTHIRAIYAN, J.lok9/10 https://www.mhc.tn.gov.in/judis 10Crl.A.No.27 of 2023 21.08.202510/10