Madras High Court
R.Ashok Kumar vs P.Ravikumar on 11 January, 2021
Crl.A.No759 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.01.2021
CORAM :
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No759 of 2013
R.Ashok Kumar
S/o.Ramasamy ... Appellant/Complainant
Vs.
P.Ravikumar
S/o.Periakaruppan ... Respondent/Accused
PRAYER: Criminal Original Petition filed under Section 378(4) of the
Criminal Procedure Code to set aside the Judgement of the First
Additional District and Sessions Judge, Coimbatore, in C.A.No.253 of
2011 dated 30.07.2012 and confirm the Judgement of the Trial Judge I.e.
Judicial Magistrate Court, FTC.II Level, Coimbatore in C.C.No.3 of
2011 dated 10.07.2011.
For Appellant : Mr.T.M.Ramalingam (No Appearance)
For Respondent : No Appearance
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Crl.A.No759 of 2013
ORDER
(The case has been heard through video conference)
The Appeal has been filed by the Appellant/Complainant
against the Judgement passed by the First Additional District and
Sessions Judge, Coimbatore in C.A.No.253 of 2011 dated 30.07.2012,
reversing the Judgement of conviction and sentence passed by the
learned Judicial Magistrate, Fast Track Court Magistrate Level-II,
Coimbatore, in C.C.No.3 of 2011, dated 10.11.2011, finding the
Respondent/Accused guilty for the offence under Section 138 of the
Negotiable Instruments Act and convicting the Respondent/Accused to
undergo Simple Imprisonment for a period of 10 months and to pay a
fine of Rs.5,000/- and in default to undergo another 3 months Simple
Imprisonment.
2. When the matter was listed on 19.11.2013, there was no
representation for the appellant. Thereafter, the case had been posted on
03.12.2013, 16.01.2014, 20.01.2014, 27.01.2014 and 31.10.2018 and on
all these days, there had been no representation for the appellant. Again
this matter was listed before this Court on 07.01.2021. Even on that day,
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Crl.A.No759 of 2013
there was no representation for the appellant and thereby, this Court
directed the matter to be listed today. Even today i.e. 11.01.2021, there is
no representation for the appellant.
3.The Brief facts of the case: In January 2007, the
Respondent/Accused had requested the Appellant/Complainant to
advance him Rs.5.25 lakhs and the Appellant/Complainant had made
arrangements for the same and lent a sum of Rs.5.25 lakhs to the
Respondent/Accused on 12.09.2007. The Respondent/Accused had
promised to repay the same with interest @ 24% per annum within three
months from the date of borrowal. However, the Respondent/Accused
failed to make the repayment within the stipulated time. After repeated
demands made by the Appellant/Complainant, the Respondent/Accused
issued a cheque dated 04.12.2007 for Rs.5.25 lakhs drawn on his account
M/s.Bank of India, Perur Branch and the Respondent/Accused had
promised that he would pay accrued interest within a month. On
08.12.2007, the Appellant/Complainant had presented the said cheque
with his banker, the Central Bank of India, Peelamedu Branch but the
said cheque was dishonoured on the ground of “insufficient funds” in
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Crl.A.No759 of 2013
the account of the Respondent/Accused. Therefore, on 18.12.2007, the
Appellant/Complainant issued a statutory notice. But that did not evoke
any response including a reply notice. Hence, the complaint.
4. Since, prima facie case was made out, summons were sent to
the Respondent/Accused. On appearance, all documents were provided
free of cost and the accusations were explained to him and he was
questioned. Since, the Respondent/Accused denied having committed
any offence under Section 138 of the Negotiable Instruments Act, the
case was posed for trial.
5. During the course of trial, the Appellant/Complainant
examined himself as PW.1 by filing proof and marked documents Exs.P1
to P5. Ex.P.1 is the cheque dated 04.112.2007 of Bank of India, Perur
Branch for Rs.5,25,000/- bearing No.036488, Ex.P.2 is the debit notice,
Ex.P.3 is the returned memo of the bank dated 10.12.2007 stating the
reason “Funds insufficient”, Ex.P.4 is the statutory notice and Ex.P.5 is
the acknowledgment card for the receipt of the notice. With the above,
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Crl.A.No759 of 2013
the complainant side evidence closed.
6. The Respondent/Accused was questioned under Section
313(1)(b) Cr.P.C., as to the incriminating aspects present in the evidence
of PW.1. On questioning, the Respondent/Accused had stated that it is a
a false case and claimed to have witness on his side.
7. On the side of the defence, the friend of the
Respondent/Accused viz., Ramanathan was examined as D.W.1. The
Respondent/Accused examined himself as DW.2 and marked documents
as Exs.D1 to D3. Ex.D1 is the reply notice, Ex.D2 is the
acknowledgment for the receipt of notice and Ex.D3 is the
acknowledgment card in respect of receipt by the
Appellant/Complainant. Ramanathan/ friend of the Respondent/Accused
who was examined as DW1 had deposed that the brother of the
Appellant/Complainant by name Nagaraj was doing money lending
business and that he had borrowed a sum of Rs.25,000/- from him. At
that time the cheque of the Respondent/Accused was given as security to
the Appellant/Complainant and the said cheque is the one involved in
this case. He had further deposed that even in the year 2007, the entire
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Crl.A.No759 of 2013
amount was paid back but, the documents given as security were not
returned. He further stated that one Vasantha had given a complaint to
the police and the brother of the complainant Nagaraj had returned the
documents of Vasantha alone in the police station while retaining the
documents of the Respondent/Accused stating that the interest was yet to
be paid and that a complaint has been filed by the Appellant/Complainant
as Benami of is brother Nagaraj. Thereafter, the Respondent/Accused
examined himself as DW2. He had deposed that there was no privity of
contract between him and the complainant and that the
Respondent/Accused does not know the Appellant/Complainant.
8. The trial Court after hearing both sides, found the
Respondent/Accused guilty for the offence under Section 138 of the
Negotiable Instruments Act and convicted him as stated above by order
dated 10.11.2011 in C.C.No.3 of 2011.
9. Aggrieved by the same, the Respondent/Accused had filed a
Crl.A.No.253 of 2011 before the First Additional District and Sessions
Judge, Coimbatore. The grounds raised by the Respondent/Accused in
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Crl.A.No759 of 2013
the appeal is that he had no acquaintance with the
Appellant/Complainant and there was no privity of contract between
them and he had not borrowed any amount from him.
10.The Appellate Court finding that the Respondent/Accused
had rebutted the presumption under Section 139 of the Negotiable
Instruments Act and finding that during the course of trial the
Appellant/Complainant had stated that he advanced the loan on the basis
of promissory note and finding that the promissory note was not
produced before the court and also finding that one Nagaraj, the brother
of the Appellant/Complainant who was working in the Commercial Tax
Department, had set up the complainant to file the complaint and finding
that there was no proof of payment of money to the accused, had
acquitted the Respondent/Accused. The appellate Court had also taken
into consideration the inconsistencies in the complaint and the
depositions, had disbelieved the case of the complainant and acquitted
the Respondent/Accused. The appellate Court had further held that the
available evidence on record thus created a dent in the reliability of the
case of the Appellant/Complainant and finding that the accused by
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Crl.A.No759 of 2013
preponderance of probability within his capacity had rebutted the
presumption, had acquitted the accused.
11. Against the Judgment in Crl.A.No.253 of 2011, dated
30.07.2012 passed by the First Additional District and Sessions Judge,
Coimbatore, the present petition has been filed.
12. I have gone through the Judgments of both the Courts
below and the materials on record.
13. The appellate Court finding that the Respondent/Accused
had sent a reply to the Appellant/Complainant denying his liability and
finding that though the Appellant/Complainant had stated that he had
advanced the money to the Respondent/Accused based on a promissory
note, the Appellant/Complainant had not produced the promissory note
before the Court and also no other materials was produced to show that
the amount was paid to the Respondent/Accused, had rightly acquitted
the Respondent/Accused.
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Crl.A.No759 of 2013
14. This Court finds no infirmity in the order passed by the
lower Appellate Court in Crl.A.No.253 of 2011 dated 30.07.2012 on the
file of the First Additional District and Sessions Judge, Coimbatore.
15 . Accordingly, this Criminal Appeal is dismissed.
11.01.2021
ksa-2
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Crl.A.No759 of 2013
A.D.JAGADISH CHANDIRA, J.
ksa-2
Crl.A.No759 of 2013
11.01.2021
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