Madras High Court
S.Ashok Kumar vs S.Boopal on 22 April, 2021
Crl.A.No.505 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.505 of 2019
S.Ashok Kumar ... Appellant
Vs.
S.Boopal ... Respondent
PRAYER: Criminal Appeal is filed under Section 378 of Cr.P.C. to set aside the
Judgment dated 29.03.2019 passed in C.A.No.432 of 2018, on the file of the
I Additional District and Sessions Court, Coimbatore, modifying the Judgment
dated 26.09.2018 passed in C.C.No.504 of 2016, on the file of the learned
Judicial Magistrate, Fast Track Court No.I, at ML, Coimbatore.
For Appellant : Mr.M.Marudhachalam
For Respondent : Mr.L.Mouli
JUDGMENT
The complainant in C.C.No.504 of 2016, on the file of the learned Judicial
Magistrate, Fast Track Court No.1, at ML, Coimbatore is the appellant in the
present Criminal Appeal. The said Calender Case came to be instituted on
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Crl.A.No.505 of 2019
complaint for an alleged offence punishable under Section 138 of the Negotiable
Instruments Act. The learned Judicial Magistrate, Fast Track Court No.1, at ML,
Coimbatore, after trial held the respondent herein/accused guilty of the offence
punishable under section 138 of the Negotiable Instruments Act, convicted him
and sentenced him to undergo simple imprisonment for six months and to pay
compensation of Rs.90,000/- as per Section 357 (3) of Cr.P.C to the
complainant, within two months from the date of the Judgment, failing which,
the accused shall undergo two months Imprisonment.
2. As against the said judgment of the learned Judicial Magistrate, Fast
Track Court No.1, at ML, Coimbatore dated 26.09.2018 made in C.C.No.504 of
2016, the respondent herein/accused preferred an appeal before the learned
Principal District and Sessions Judge, Coimbatore, and the same was taken on
file in C.A.No.432 of 2018 and made over to the learned I Additional District
and Sessions Judge for disposal. The learned appellate Judge, after hearing the
appeal, allowed the appeal, set aside the conviction and acquitted the
respondent herein/accused of the offence punishable under section 138 of the
Negotiable Instruments Act for which he was prosecuted before the Trial Court.
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Crl.A.No.505 of 2019
3. As against the judgment of the learned I Additional District and
Sessions Court, Coimbatore, dated 29.03.2019 made in C.A.No.432 of 2018, the
petitioner herein/complainant has chosen to prefer the present Appeal.
4. The learned counsel for the appellant would submit that the
respondent/accused has borrowed a sum of Rs.90,000/- from the
appellant/complainant on 27.01.2015 and in order to discharge the legally
enforceable debt, issued a cheque bearing No.928921, drawn on Karur Vysya
Bank, Main Branch, Coimbatore, however, when it was presented for payment,
the same was returned on 28.04.2015, with the endorsement "drawers signatures
differs". Though the appellant has proved the charges levelled against the
accused with acceptable evidence before the trial Court, however the
appellant Court, without appreciating the same, acquitted the accused and
therefore, the same is required to be interfered with.
5. The learned counsel for the respondent would submit that the
respondent never borrowed money from the complainant and admittedly the
cheque was returned with an endorsement "drawers signatures differs" and
hence, the respondent sent a reply for the statutory notice and the appellant
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Crl.A.No.505 of 2019
has not even sent any rejoinder to that reply and no effective steps have been
taken to send the disputed cheque for expert opinion for comparing the
signature. It is further contended that the respondent is only an auto rickshaw
driver, whereas, the appellant/complainant is doing in computer business and it
was not even stated in the notice. It is further submitted that the appellant has
to prove the relationship between the respondent and the appellant, and
admittedly, the appellant is a stranger and an unknown person, he also properly
explained the reply notice, for which there is no rejoinder. Though the learned
Magistrate convicted the respondent, the first appellate Court on proper
appreciation of evidence, set-aside the judgment of conviction and sentence
and allowed the Appeal and there is no merit in the Appeal.
6. Heard the learned counsel on either side and perused the materials
placed on record.
7. The appellant, as a complainant, filed a private complaint under
Section 138 of the Negotiable Instruments Act against the respondent/accused.
The case of the complainant is that the respondent/accused borrowed a sum of
Rs.90,000/- by executing the cheque and when the said cheque was presented
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Crl.A.No.505 of 2019
for encashment, the same was returned. Subsequently, he sent a notice and
filed a complaint.
8. A perusal of the entire records and even in the statutory notice sent by
the complainant, the respondent/accused has sent the reply and he denied the
execution of the cheque. It is to be noted that the cheque was returned for the
reason that the signature of the drawer differs. It is also to be noted that the
appellant is a stranger and he has not proved that there was a transaction
between the appellant and the respondent. When the cheque was returned for
the reason that the signature differs, and the respondent/accused has taken a
stand that the complainant is a stranger to the accused, it is for the
appellant/complainant to establish the case and the appellant has not proved
the same, and if once, execution of cheque is proved, the presumption under
Sections 118 and 139 of the Negotiable Instruments Act can be drawn and the
accused has to rebut the presumption that there is no legally enforceable debt
and cheque has not been issued for legally enforceable debt, whereas in the
present case, the appellant/complainant has not established the execution of
the cheque and borrowal of the money, by the respondent/accused.
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Crl.A.No.505 of 2019
9. On a reading of the entire materials, the appellate Court, as a fact
finding Court, has rightly re-appreciated the evidence in proper perspective,
under the circumstances, this Court does not find any perversity in the
judgment of the appellate Court, and there is no compelled circumstances or
reason to interfere with the Judgment of acquittal, unless any compelled
circumstances or reason warranted, this Court cannot interfere with the
Judgment of acquittal.
10. In the result, this Criminal Appeal is dismissed, confirming the
Judgment passed by the learned I Additional District and Sessions Court,
Coimbatore in C.A.No.432 of 2018, acquitting the accused for hte offence under
Section 138 of the Negotiable Instruments Act, setting aside the ocnviction and
sentence passed by the learned Judicial Magistrate, Fast Track Court No.I, at
ML, Coimbatore in C.C.No.504 of 2016.
22.04.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
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Crl.A.No.505 of 2019
To
1.The I Additional District and Sessions Court,
Coimbatore.
2.The Judicial Magistrate, Fast Track Court No.I,
at ML, Coimbatore.
3.The Public Prosecutor,
High Court of Madras,
Chennai.
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Crl.A.No.505 of 2019
P.VELMURUGAN, J.
rns
Crl.A.No.505 of 2019
22.04.2021
https://www.mhc.tn.gov.in/judis/
