High Court · 2025

Crl.A.(MD)No.285 of 2025BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDated : 26.03.2025CORAM:THE HONOURABLE MR.JUSTICE B.PUGALENDHICrl.A.(MD)No.285 of 2025S.Selvaraj... AppellantversusA.S.Anthonisamy... RespondentCriminal Appeal filed under Section 419 of Bharatiya Nagarik Suraksha Sanhita, to call for the records pertaining to the order passed by the learned Judicial Magistrate at Fast Track Court, Pattukkottai, Thanjavur District in S.T.C.No.113 of 2023 dated 30.05.2024, set aside the same and allow the appeal and to convict the respondent/accused under Section 138 of the Negotiable Instrument Act to the maximum sentence and to award compensation twice the cheque amount. For Appellant: Mr.K.MahendranFor Respondent: Mr.A.Senthil Kumar JUDGMENTThe appellant has filed a private complaint under Section 200 Cr.P.C. as against the respondent for the offence under Section 138 of the Negotiable Instruments Act that the respondent borrowed a sum of Rs.25 lakhs on 21.12.2015 and a further sum of Rs.16 lakhs on 27.11.2017 for the purpose of his business and in order to discharge his liability, the respondent has issued Ex.P3-cheque dated 16.03.2023 for a sum of Rs.25 lakhs. When the cheque was presented for collection on 16.03.2023, the same was returned as “account 1/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025closed”. Therefore, the appellant has issued a legal notice calling upon the respondent to pay money as per the cheque/Ex.P3 through his Advocate on 25.03.2023 and the same was received by the respondent on 27.03.2023. The respondent neither gave any reply to the legal notice dated 25.03.2023 nor paid the amount. Therefore, the appellant has filed the above complaint before the learned Judicial Magistrate, Pattukottai, Thanjavur District, for the offence under Section 138 of the Negotiable Instruments Act and the same was also tried by the trial Court in S.T.C.No.113 of 2023. 2. During the trial, the appellant examined himself as P.W.1 and he marked seven documents. On the side of the respondent, no one was examined. In conclusion of trial, the trial Court found that the respondent has rebutted the presumption that there is no legally enforceable debt towards the complainant and the appellant has not approached the Court with clean hands and therefore, rejected the complaint. As against the Judgment of acquittal passed by the trial Court in S.T.C.No.113 of 2023 dated 30.05.2024, this Criminal Appeal has been filed. 3. The learned counsel appearing for the appellant submits that the respondent has issued a hand slip dated 21.12.20215 for a sum of Rs.25 lakhs in Ex.P1 and another hand slip dated 27.04.2017 for a sum of Rs.16 lakhs. 2/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025The respondent has also issued a cheque (Ex.P3). The respondent has not disputed that Ex.P3-Cheque is not that of the respondent and the signature found in the instrument Ex.B3 does not belong to him and he has not disputed the document which has been marked by the complainant in Ex.P1 and Ex.P2. Therefore, according to the learned counsel, once the cheque has not been disputed by the respondent and when it was presented for collection, it was returned, the respondent/accused has committed the offence after 15 days from the date of receipt of notice. A legal notice was issued on 25.03.2023 and the same was received by the respondent/accused on 27.03.2023. But, the respondent neither repaid the amount nor gave any reply to the notice dated 25.03.2023. 4. The learned counsel for the appellant further submits that the trial Court has rejected the complaint that it is a time barred debt by taking into account the provision under Section 118 of the Limitation Act. In this regard, the learned counsel has relied on the Judgment of the Hon'ble Supreme Court in A.V.Murthy vs. B.S.Nagabasavanna reported in AIR 2002 SC 985, wherein, the Hon'ble Supreme Court has held as under:“The respondent refused to accept notice and we did not have the advantage of hearing him. The respondent seems to have contended that as the loan was advanced four years prior to the issuance of the cheque, the debt or the liability for 3/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025which the cheque was drawn by him had ceased to be legally enforceable and, therefore, no complaint could have been filed by the complainant under Section 138 of the Act. As the complaint has been rejected at the threshold, we do not propose to express any opinion on this question as the matter is yet to be agitated by the parties. But, we are of the view that the learned Sessions Judge and the learned Single Judge of the High Court were clearly in error in quashing the complaint proceedings. Under Section 118 of the Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Moreover, in the instant, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31st March 1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgement and the 4/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025creditor might have a fresh period of limitation from the date on which the acknowledgement was made. However, we do not express any final opinion on all these aspects, as these are matters to be agitated before the Magistrate by way of defence of the respondent. This is not a case where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that the debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type. But, we are certain that at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous.”5. Mr.A.Senthil Kumar, learned counsel, who entered appearance for the respondent, submitted that the respondent has repaid a sum of Rs.27 lakhs to the complainant/appellant and that was also admitted by the complainant in his evidence. The learned counsel has also referred to the evidence of the complainant/appellant and submitted that the complainant has received a sum of Rs.27 lakhs on various dates. Therefore, according to the respondent, there was no legally enforceable debt towards the complainant.5/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 20256. This Court considered the rival submissions and also perused the materials placed on record. 7. The appellant has lodged the above complaint that the respondent borrowed a sum of Rs.25 lakhs on 21.12.2015 and gave a hand slip (Ex.P1). He also borrowed a sum of Rs.16 lakhs on 27.11.2017 and gave another hand slip (Ex.P2) in the same manner. Admittedly, these instruments are not the stamped instruments and it cannot be considered that the respondent borrowed money from the complainant. The trial Court has found that the cheque Ex.P3 was issued as a blank cheque and it was filled up by the appellant. The appellant has also admitted the same in his evidence. The appellant has not stated as to when this cheque was given by the respondent, either in his complaint or in the legal notice. The trial Court has observed so in its Judgment dated 30.05.2024. 8. This Court has also provided three opportunities to the complainant/appellant to place the complaint as well as the notice and the evidence before this Court for appreciation of the complaint. However, the appellant failed to place the complaint, notice and the evidence copy before this Court. 6/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 20259. From the evidence of the complainant/appellant, the trial Court has come to the conclusion that the respondent has repaid a sum of Rs.27 lakhs to the complainant and by suppressing the said fact, the complaint was lodged. The evidence of the complainant is not available and therefore, the relevant paragraph of the trial Court is extracted as under: “5/ nkw;go rhl;rpaj;jpid ,e;j ePjpkd;wk; Ma;t[ bra;a[k;nghJ thjp fle;j 2015k; Mz;L U:/25yl;rKk; 2017k; Mz;L U:/16yl;rk; vjphpf;F fld; bfhLj;jjhft[k;. me;j flid tl;oa[k; KjYkhf nrh;j;J jpUg;gp bfhLf;fhjjhy; vjphp tHf;F fhnrhiyia thjpf;F bfhLj;jjhft[k;. mjid thjpapd; t';fpapy; jhf;fy; bra;jnghJ. Account Closed vd;W jpUg;gg;gl;ljhft[k; thjp ,e;j tHf;if jhf;fy; bra;Js;snghJ. thjp jdJ rhl;rpaj;jpy; fle;j MW khjj;jpw;F Kd;g[ U:/20yl;rk; vjphp t';fp K:ykhf jdf;F jpUg;gp bfhLj;Jtpl;lhh; vd;Wk;. Vjphp ,uz;L fhnrhiyfis jyh ,uz;L yl;rj;jpw;F jd;dplk; bfhLj;jjhft[k;. me;j fhnrhiyfis tNYf;F brYj;jp U:/4.00.000-? bgw;Wf; bfhz;ljhft[k;. nkw;go bjhiffis vjphp thjpf;F mtuJ t';fp K:ykhfj;jhd; brYj;jpdhh; vd;Wk;. nkYk; vjphp U:/3.00.000-? mt;tg;nghJ thjpaplk; rpy;yiuahf ifapy; bfhLj;jhh; vd;Wk;. nkYk; thjpapd; t';fp fzf;F jtpu. thjpapd; kidtpapd; t';fpf; fzf;fpYk; vjphp gzj;ij brYj;jpa[s;shh; vd;Wk; rhl;rpak; 7/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025mspj;Js;shh;/ ,jdhy; nkw;go rhl;rpaj;jpy; ,Ue;J vjphp thjpf;F ,Jtiu U:/27 yl;rk; tiu gzk; bfhLj;Js;shh; vd;gJk;. mij jtpu thjpapd; kidtpapd; t';fpapYk; vjphp gzk; brYj;jpa[s;shh; vd;gJk; ,e;j ePjpkd;wj;jpw;F bjspthf bjhpatUfpwJ/”10. Though the appellant/complainant admitted before the trial Court that he has received a sum of Rs.27 lakhs from the respondent, he failed to mention the same in his complaint. The trial Court has also found that a sum of Rs.25 lakhs said to have been given by the complainant in the year 2015 and it is also a time barred debt. Therefore, the Court found that the respondent has rebutted the presumption and the complainant has not proved his case that there is a legally enforceable debt. 11. The learned counsel for the appellant has relied on the Judgment of the Hon'ble Supreme Court as cited above, which is of the year 2002. The ratio has now been changed. The Hon'ble Supreme Court in Rangappa vs. Srimohan, reported in 2010 (11) SCC page 441, held that in the event if the accused was able to rebut the presumption, then, it is the responsibility of the complainant to prove his case. The ratio, which is required to rebut, is also preponderance of probabilities that there was no legally enforceable debt. In this case, the respondent has effectively rebutted the presumption and the 8/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025complainant has not approached the Court with clean hands. 12. This Court has also considered the ratio laid down in V.Sejappa v. State [(2016) 12 SCC 150], wherein, the Hon'ble Supreme Court has followed its own decision in Muralidhar v. State of Karnataka [(2014) 5 SCC 730]. The guidelines issued in the said decision are extracted hereunder: “23. ... ... (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully 9/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025justified; and(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."13. In yet another decision in the case of Chandrappa Vs State of Karnataka [(2007) 4 SCC 415], the Hon'ble Supreme Court has laid down the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal:“(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.(2) The Code of Criminal Procedure, 1973 puts on limitation restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.(3) Various expressions, such as, 'substantial and compelling reaons', good and sufficient grounds', 'very strong circumstances', distorted conclusions', 'glaring mistakes', etc are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the 10/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.”14. Since the appellant/complainant has not established his case and as per the ratio laid down by the Hon'ble Supreme Court as cited above, this Court is not inclined to entertain this appeal. Accordingly, this Criminal Appeal is dismissed. 26.03.2025ogyIndex : Yes / No.Internet: Yes / No.NCC : Yes / No.11/12 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.285 of 2025B.PUGALENDHI, J.ogy Crl.A.(MD)No.285 of 202526.03.202512/12