K.MURALI SHANKARCRL.A(MD).No. 85 of 2025 A.Lailathasha Begumrep.through her power agentS.S.P.Sardar Shahul Hameed v. S.Nargisjan

CRL.A(MD).No. 85 of 2025Magistrate No.II cum Fast Track Court, Madurai, in acquitting the respondent/accused for the offence under Section 138 of Negotiable Instruments Act. 2.The appellant, who is the complainant, filed a complaint under Section 200 Cr.P.C., against the respondent/accused for the offence under Section 138 r/w 142 of Negotiable Instruments Act. 3. For the sake of convenience and brevity, the parties herein after will be referred as per their ranking/status before the trial Court. 4.The case of the complainant is; a) The accused was working in Tamil Nadu Electricity Board and the complainant's husband, who is the retired staff of Tamil Nadu Electricity Board, is no more and that the complainant's husband, while he was serving in the Electricity Board, was the President of INTUC Trade Union and the accused the Treasurer. Since the complainant's husband and the accused were working in the same department and were office bearer of the Trade Union and also belonging to the same community, the complainant had acquaintance with the accused. 2/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025b) The accused, to meet out her family expenses and to clear sundry debts borrowed amounts from the complainant on various occasions totalling Rs.4,75,000/- and the accused agreed to return the amount whenever the complainant demanded. Since the complainant was in need of money during March 2006, she approached the accused and requested to return the amount due by her and at that time, the accused issued a cheque for Rs.4,75,000/-, dated 18.03.2006 drawn on Canara Bank, Thallakulam Branch Madurai, in favour of the complainant. c) The complainant presented the cheque for collection on 18.03.2006, through her bankers State Bank of India, Arasaradi Branch, Madurai, but the cheque was returned as 'funds insufficient'. The complainant sent a legal notice, dated 29.03.2006, demanding the accused to pay the amount covered by the cheque and having received the notice on 01.04.2006, the accused sent a reply notice with false and untenable allegations. The complainant sent a rejoinder notice, dated 17.04.2006, directing the accused to pay the amount due by her. Since the accused has not complied with the notice demand, the complainant was constrained to file the above complaint for the alleged offence under Section 138 r/w 142 of Negotiable Instruments Act. 3/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 20255. The learned Judicial Magistrate, upon receiving the complaint, recorded the sworn statement of the complainant and on perusing the records, upon satisfied that there existed a prima facie case, took the case on file in C.C.No.210 of 2006 on the file of the Court of Judicial Magistrate No.V, Madurai and ordered for issuance of summons to the accused. After appearance of the accused, copies of the records were furnished to him under Section 207 of Cr.P.C., on free of cost. When the accused was questioned about the offence alleged against him, he denied the commission of offence and pleaded not guilty. Thereafter, the case was transferred to the file of the Court of the Judicial Magistrate No.II (FTC) Madurai and the same was taken on file in S.T.C.No.843 of 2012. 6. During trial, the complainant examined her power agent as P.W.1 and herself as P.W.4 and the Bank Officials of the complainant's Bank as well as the accused Bank as P.W.2 and P.W.3 respectively and exhibited 8 documents as Ex.P.1 to Ex.P.8. The accused examined herself as D.W.1 and one Sudhahar as D.W.2 and exhibited 8 documents as Ex.D.1 and Ex.D.8.4/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 20257. The learned Judicial Magistrate, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, passed the impugned judgment, dated 26.05.2014, holding that the complainant has not proved the offence under Section 138 of Negotiable Instruments Act as against the accused beyond reasonable doubt, acquitted him under Section 255 of Cr.P.C. Aggrieved by the impugned judgment of acquittal, the complainant has preferred the present appeal. 8. Whether the impugned judgment of acquittal passed in S.T.CNo.843 of 2012, dated 26.05.2014 on the file of the learned Judicial Magistrate No.II, (FTC) Madurai, is liable to be set aside ? is the point for consideration. 9. Before entering into further discussion, it is necessary to refer Section 118 (a) and 139 of the Negotiable Instruments Act, which deal with the statutory presumption. “118. ... (a) of consideration ; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or 5/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025transferred, was accepted, indorsed, negotiated or transferred for consideration ;139.Presumption in favour of holder. 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 the discharge, in whole or in part, of any debt or other liability.”10. It is the specific case of the complainant that the accused having acquaintance of the complainant borrowed amounts on various dates to meet out her family expenses and to clear the sundry debts to the tune of Rs.4,75,000/-; that when the complainant demanded the said amount, the accused issued a cheque for Rs.4,75,000/-, dated 18.03.2006 drawn on Canara Bank, Thallakulam Branch, Madurai under Ex.P.2; that the complainant presented the cheque for collection on 18.03.2006 through her bank State Bank of India, Arasardi Branch, but the cheque was returned dishonored for want of sufficient funds in the bank account of the accused through bankers memo, dated 18.03.2006 under Ex.P.3; that the complainant sent a legal notice, dated 29.03.2006 under Ex.P.4 directing the accused to pay the amount covered by the cheque; that the accused having received the notice on 01.04.2006 vide Ex.P.4 postal acknowledgement, sent a reply notice dated 10.04.2006 under Ex.P.6 with false and untenable allegations; that the complainant sent a rejoinder notice, dated 17.04.2006 under Ex.P.7 6/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025and that since the accused has not paid the cheque amount within the stipulated period, the complainant was forced to file the above complaint. 11. The complainant has filed the above complaint through her power agent Thiru.Sarthar Sahul Hameed, who is the brother of the complainant and was given power through power of attorney deed, dated 19.04.2006 under Ex.P.1. 12. The defence of the accused, as evident from her reply notice, dated 10.04.2006 under Ex.P.6 and the evidence adduced on her side is that the complainant's husband helped the accused to get a house loan from Diwan Housing Finance Corporation Limited, Madurai and for that purpose, the accused has given two blank cheque books of Canara Bank, Madurai bearing cheque Nos.984001 to 984010 and 985511 to 985520 to be given to that finance corporation; that after repaying the loan amount, the complainant's husband returned some cheque leaves and promised to return the remaining cheque leaves bearing Nos.984001, 984002, 984003, 984005 and 984010 by saying that they were missing, but all of sudden, the complainant's husband unexpectedly died without returning the remaining cheque leaves; that the complainant has created many problems to the 7/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025accused during life time of the complainant's husband and she has falsely alleged that the accused was having extra martial relationship with her husband and hence, the accused was forced to lodge a complaint before the S.S.Colony Police; that the complainant after the demise of her husband threatened the accused to return the huge amount falsely alleged to have been given by her husband, failing which, she would misuse the blank cheques of the accused and that the complainant with evil intention has misused the said cheque by committing forgery and filed the above false case. 13. To put it in short, the main contention of the accused is that she never borrowed any amount from the complainant nor issued any cheque to her and that the cheque issued to the complainant's husband for payment of housing loan due to Diwan Housing Finance Corporation Limited has been misused and on that basis, the above complaint came to be filed. 14. As rightly contended by the learned counsel for the complainant, it is evident from Ex.P.6 reply notice and the evidence adduced by the accused that she has specifically admitted that Ex.P.2 cheque was belonging to her and also the signature found in Ex.P.2. But according to her, blank cheque 8/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025leaves were issued to the complainant's husband for repayment of housing loan. 15. It is pertinent to mention that the complainant/P.W.4 and her power agent Thiru.Sarthar Sahul Hameed gave evidence reiterating the complaint contentions and deposed about the liability of the accused, issuance of cheque therefor, dishonor of cheque, issuance of statutory notice and the failure of the accused to pay the amount within stipulated time. 16. On considering the evidence of P.W.1 and P.W.4 and also the admission of the accused with respect to Ex.P.2 cheque and the signature found therein, the learned Magistrate has rightly drawn a presumption under Sections 118 and 139 of Negotiable Instruments Act. 17. As rightly contended by the learned counsel for the accused, the presumptions available under Sections 118 and 139 of the Negotiable Instruments Act are always rebuttable in nature. It is settled law that the accused in order to rebut the presumption drawn in favour of the complainant under Sections 118 and 139 of Negotiable Instruments Act, is not required to adduce any evidence and she can very well prove her 9/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025probable defence through evidence adduced by the complainant and that the standard of proof required is of preponderance of probabilities.18.The learned trial Judge, relied on Section 85 of Indian Evidence Act and by observing that Ex.P.1 power of attorney deed was not authenticated by any of the official referred in Section 85, has held that Ex.P.1 cannot be accepted. Section 85 of Indian Evidence Act reads as follows : “ 85. Presumption as to powers-of-attorney.-The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.” Section 85 creates a legal presumption that a power of attorney is valid, if it appears to be executed before and authenticated by a Notary public or other authorized officials. The Court shall presume that the power of attorney was correctly executed and authenticated by the notary or other officials. 10/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 202519. It is pertinent to note that there is no specific mode prescribed for the execution of power of attorney and while a power of attorney executed before and authenticated by a Notary or other authorised officials carries a presumption as to its due execution, the absence of such authentication would not render the document invalid. Merely because, the power of attorney is not duly authorised does not mean that the concerned person was not authorised to institute a case and notarization raises the presumption as to its authentication and no more. Hence, the finding of the learned Magistrate that since Ex.P.1 power of attorney deed does not contain any authentication by any notary or any other authorised officials, the document cannot be accepted, cannot legally be sustained. 20. As rightly contended by the learned counsel for the complainant, the learned trial Judge, considering the evidence available on record, has given findings that the accused had acquaintance with the complainant; that the complainant's husband helped the accused in repaying the housing loan due to Diwan Housing Finance Corporation Limited and that the contention of the accused that Ex.P.2 cheque was issued for payment of housing loan cannot be accepted. The learned trial Judge observed that since the accused 11/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025has not proved the conditions as contemplated under Section 65 of Indian Evidence Act, Ex.D.3/copy of the consent letter given by the accused to the Diwan Housing Corporation Limited cannot be considered. 21. Now the only point to be decided is as to whether the accused has rebutted the presumption drawn in favour of the complainant under Sections 118 and 139 of Negotiable Instruments Act. 22. As rightly pointed out by the learned counsel for the accused, the complainant in her statutory notice under Ex.P.4 or in her rejoinder notice under Ex.P.7 or in her chief examination or her power agent in his evidence before the trial Court, has nowhere whispered about the particulars of loan allegedly advanced by her to the accused. 23. P.W.1 complainant's power agent during cross examination would admit “ ve;nje;j Njjpapy; vjphp vd; rNfhjhpaplk; fld; thq;fpdhh; vd;W njhpahJ. ....vd; rNfhjhpaplk; vjphp ve;nje;j Njjp vt;tsT gzk; thq;fpdhh; vd;w fzf;if jhf;fy; nra;;a KbahJ. vjphp vd; rNfhjhpaplk; fld; 12/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025thq;fpajw;F mj;jhl;rpahf vJTk; vOjpf; nfhLf;ftpy;iy. 2003-k; kw;Wk; 2004-k; Mz;Lfspy;; vjphp vd; rNfhjhpaplk; fld; thq;fpdhh;. Vw;fdNt thq;fpa flid jpUg;gpj;juhjjhy; vjphpapd; kPJ 2004-k; Mz;by; vq;fSf;Fr; re;Njfk; te;jJ. 24. The complainant as P.W.4 in her cross examination would say, “25.12.2003-k; Njjp;apy; vjphpf;F &.2>50>000/- nfhLj;Njd;;> 25.12.2004-k; Njjp vjphpf;F &.1>50>000/- fld; nfhLj;Njd;;> 15.03.2005-k; Njjp vjphpf;F &.75>000/- fld; nfhLj;Njd;;. ele;j tptuj;ij GfhhpYk;> tof;fwpQh; mwptpg;gpYk;> kW mwptpg;gpYk; $wpAs;Nsd;...... fld; nfhLj;j Njjpfis kl;Lk; Kjy; tprhuizapy; $wtpy;iy. tUlk; kw;Wk; khjj;ij $wpapUf;fpNwd;. 25. But as rightly contended by the learned counsel for the accused, the complainant in her evidence as well as in the complaint, has specifically stated that the accused borrowed amount on various dates to meet her family expenses and to clear the sundry debts. But in cross examination, she would say that she had paid Rs.2,50,000/- to the accused so as to enable her to repay the loan amount due to one Nageswari and Rs.1,50,000/- for settling loan due to one Kansabai and Rs.75,000/- to settle the loan due to one Chandra. 13/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 202526. Moreover, the complainant in her evidence would admit that she had paid the above loans to the accused, after taking the same from her bank account. While deposing about the first loan of Rs.2,50,000/- , she would say “me;jf; flid tq;fpapypUe;J vLj;J vjphpf;Ff; nfhLj;Njd;. But in subsequent cross examination, she would admit“%d;W jtizfspYk; vjphpf;F nfhLj;jg; gzj;ij tq;fpapypUe;J vLj;Jjhd; nfhLj;Njd;. 27. The complainant has exhibited her bank account statements from 01.03.2005 to 04.07.2007 as Ex.P.5 through P.W.3 /official from the State Bank of India, Arasaradi Branch, where the complainant was having bank account. As rightly contended by the learned counsel for the accused and as rightly observed by the learned trial Judge, the complainant has not chosen to produce the bank statement for the period from 2003 to 2005 to show that she had withdrawn amounts from her bank account for lending the same to the accused. 14/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 202528. No doubt, the learned counsel for the complainant would submit that the complainant is having bank account in ICICI Bank and she was having more amounts in her account and produced the bank statements along with the present appeal. But as rightly contended by the learned counsel for the accused, the said statement of ICICI bank was not produced before the trial Court and in the absence of any application for receipt of additional evidence before the trial Court, the same cannot be looked into. 29. Whatever it is, since the complainant has taken a specific stand that he withdrew the amounts from her bank account and lend it to the accused, the complainant has not chosen to produce the evidence to substantiate the same. Moreover, the complainant in her evidence would admit that he noted the loan given to the accused in her diary. She would say “ me;j %d;W jtizfspYk; vjphpf;F fld; nfhLj;jjw;F Mjuthf Mtzk; vJTk; vOjp thq;ftpy;iy. me;j %d;W jtiz njhif ngw;wjw;F vjphp mth;fSila ilhpapy; vOjp itj;Jf; nfhz;lhh;> ehd; vd; ilhpapy; Fwpj;Jf;nfhz;Nld;. 15/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025 30. But admittedly the complainant has not produced the diary. The complainant in her evidence would admit that while giving the first loan of Rs.2,50,000/-, she demanded the accused to execute a promissory note, but the accused gave a copy of the document relating to her house property. Admittedly, she has not produced the said document. 31. Considering the above admissions of the complainant and her power agent elicited, as rightly observed by the learned Magistrate, the accused has successfully rebutted the presumption raised in favour of the complainant. Though the burden gets shifted to the complainant, she has not produced any evidence to show that she advanced three loans to the tune of Rs.4,75,000/- to the accused for which, Ex.P.2 came to be issued. 32. In view of the above, the findings of the learned Magistrate that the complainant failed to prove the offence under Section 138 of Negotiable Instruments Act are legal and valid. Consequently, this Court concludes that the Criminal Appeal is devoid of merits and the same is liable to be dismissed. 16/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 202533. In the result, the Criminal Appeal is dismissed. 21.11.2025NCC :Yes / NoIndex :Yes / NoInternet :Yes / NodasTo1.The Judicial Magistrate No.II cum Fast Track Court, Madurai. 2.The Section Officer, Criminal Section (Records), Madurai Bench of Madras High Court, Madurai. 17/18 https://www.mhc.tn.gov.in/judis CRL.A(MD).No. 85 of 2025K.MURALI SHANKAR,J.dasPre-delivery order made inCRL.A(MD).No. 85 of 202521.11.202518/18