Madras High Court
Tmt.Chandra vs Thiru.Muthusamy : 1St on 30 July, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.07.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A(MD)No.184 of 2021
Tmt.Chandra : Appellant/Complainant
Vs.
1.Thiru.Muthusamy : 1st Respondent/Accused
2.State rep. by
Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai. : 2nd Respondent/Complainant
Prayer: Criminal Appeal has been filed under section
379(4) of the Code of Criminal Procedure, against the order of
acquittal passed in favour of the 1st respondent/accused by the
Judicial Magistrate No.1, Dindigul, in CC No.160 of 2017, dated
03.01.2020.
For Petitioner : Mr.A.Hariharan
For 1st Respondent : Mr.J.Gunaseelan Muthiah
For 2nd Respondent : Mr.RMS.Sethuraman
Standing counsel for
State Government (Crl. side)
https://www.mhc.tn.gov.in/judis/
2
JUDGMENT
This Criminal Appeal is directed against the order of
acquittal passed in favour of the 1st respondent/accused by the
Judicial Magistrate No.1, Dindigul, in CC No.160 of 2017, dated
03.01.2020.
2.It is seen from the records that the 1st
respondent/accused borrowed a sum of Rs.2,50,000/-, on
26.05.2017 from the appellant/complainant and for discharging the
said loan, he issued a post-dated cheque bearing No.079041, dated
26.08.2017 drawn on Axis Bank, Dindigul Branch and on
presentation of the cheque for collection on 26.08.2017, it was
dishonoured with the endorsement that “Account has been closed”.
The appellant sent a legal notice, dated 15.11.2017 to the 1 st
respondent/accused, which was returned with an endorsement 'not
claimed'. Hence, the case.
3.The accused was summoned. Notice under Section 251
Cr.P.C was served upon the accused to which he pleaded not guilty
and claimed trial. After completing trial, vide order, dated
03.01.2020, learned Judicial Magistrate No.I, Dindigul, acquitted
the accused. Challenging the same, the petitioner/complainant is
before this court.
https://www.mhc.tn.gov.in/judis/
4.Heard the learned counsel appearing on either side and
perused the materials available on record.
5.The main contention raised on the side of the
appellant/complainant is that the accused admitted his signature in
the cheque and unless and until is proved, it is presumed that the
accused only borrowed money from the appellant/complainant and
issued the disputed cheque and in this case, the accused failed to
rebut the presumption and the trial court erroneously came to the
conclusion that Ex.P1 cheque was issued as security for the loan
obtained from the husband of the complainant by the accused and
acquitted the accused and prays that the Criminal Appeal has to be
allowed.
6.On the side of the 1st respondent/accused, it is argued
that there was money transaction between the husband of the
complainant and the accused and the cheque was issued as security
for the loan obtained from the husband of the complainant and the
complainant has no means to give the loan amount and the husband
of the complainant filed this case in the name of his wife and the
accused rebutted the presumption and the trial court correctly
https://www.mhc.tn.gov.in/judis/
came to the conclusion that Ex.P1 cheque given as security for the
loan obtained by the accused from the husband of the complainant
and prays that the Criminal Appeal has to be dismissed.
7.In this case, the accused admitted his signature found in
Ex.P1 cheque. Hence, it is necessary to rebut the presumption by
the accused. On the side of the accused, it is stated that there was
money transaction only between the husband of the complainant
and the accused and the accused gave the disputed cheque to the
husband of the complainant during the year of 2010 and his
account was closed during the year 2014, but the disputed cheque
is dated 26.05.2017 and hence, the complainant falsely used the
cheque in this case and the cheque was returned as Account closed
and hence, there was no transaction between the complainant and
the accused and hence, the trial court correctly came to the
conclusion that there was money transaction between the husband
of the complainant and the accused and acquitted the accused and
hence, the accused rebutted the presumption and prays that the
Criminal Appeal has to be dismissed.
https://www.mhc.tn.gov.in/judis/
8.It was stated on the side of the accused that money
transaction was between him and the husband of the complainant.
To prove it, no document was filed. Further, on the side of the
accused, it is stated that the complainant has no means to give the
loan amount. But the learned counsel appearing for the
appellant/complainant submitted that the accused admitted his
signature in the disputed cheque and hence, the trial court cannot
go into the question, whether the complainant has means to give
loan or not and in support of the said contention, the learned
counsel for the appellant/complainant submitted a ruling reported
in 2021(2) CTC 357 (Kalamani Tex and others Vs.
P.Balasubramanian). In that case, it has been held in para 14 to
16 as follows:-
“14.Adverting to the case in hand,
we find on a plain reading of its judgment
that the trial Court completely overlooked the
provisions and failed to appreciate the
statutory presumption drawn under Section
118 and Section 139 of NIA. The Statute
mandates that once the signature(s) of an
accused on the cheque/negotiable instrument
https://www.mhc.tn.gov.in/judis/
are established, then these ‘reverse onus’
clauses become operative. In such a situation,
the obligation shifts upon the accused to
discharge the presumption imposed upon
him. This point of law has been crystalized by
this Court in Rohitbhai Jivanlal Patel v. State
of Gujarat, 2019(2) MWN (Cr.) DCC 26 (SC):
2019(18) SCC 106, p.18 in the following
words:
“In the case at hand, even after
purportedly drawing the presumption
under Section 139 of the NI Act, the trial
court proceeded to question the want of
evidence on the part of the complainant as
regards the source of funds for advancing
loan to the accused and want of examination
of relevant witnesses who allegedly extended
him money for advancing it to the accused.
This approach of the trial court had been at
variance with the principles of presumption
in law. After such presumption, the onus
shifted to the accused and unless the
accused had discharged the onus by bringing
on record such facts and circumstances as to
show the preponderance of probabilities
tilting in his favour, any doubt on the
complainant's case could not have been
https://www.mhc.tn.gov.in/judis/
raised for want of evidence regarding the
source of funds for advancing loan to the
appellant-accused…..”
15.Once the 2nd Appellant had
admitted his signatures on the cheque and
the Deed, the trial Court ought to have
presumed that the cheque was issued as
consideration for a legally enforceable debt.
The trial Court fell in error when it called
upon the Complainant-Respondent to explain
the circumstances under which the appellants
were liable to pay. Such approach of the trial
Court was directly in the teeth of the
established legal position as discussed above,
and amounts to a patent error of law.
16.No doubt, and as correctly
argued by senior counsel for the appellants,
the presumptions raised under Section 118
and Section 139 are rebuttable in nature. As
held in MS Narayana Menon v. State of
https://www.mhc.tn.gov.in/judis/
Kerela, 2006(3) CTC 730 (SC); 2006 (6) 39, p
32, which was relied upon in Basalingappa
(supra), a probable defence needs to be
raised, which must meet the standard of
“preponderance of probability”, and not mere
possibility. These principles were also
affirmed in the case of Kumar Exports
(supra), wherein it was further held that a
bare denial of passing of consideration would
not aid the case of accused.”
9.In this case, after the cheque was dishonoured as
'Account closed', the complainant issued a notice to the accused to
pay the cheque amount as per Ex.P4. But the above notice was
returned as “not claimed.” Hence, it indicates that the accused
fully knowing the notice, refused to receive it. Under these
circumstances, it is presumed that he admitted the contents found
in the notice. Further, while cross examining PW1, the learned
counsel for the accused put a question that the accused gave the
complaint against the complainant and her husband in respect of
charging exorbitant interest before North Madurai Police Station.
https://www.mhc.tn.gov.in/judis/
For that, PW1 replied that the accused gave the complaint before
the North Madurai Police Station against her and her husband.
Further, PW1 admitted the pendency of the case before the court.
The accused took the defence that he only obtained loan from the
husband of the complainant and not from the complainant. But no
explanation was given on the side of the accused, why he gave the
complaint against the complainant in respect of charging exorbitant
interest.
10.It is pertinent to note that giving of complaint by the
accused against the complainant and her husband shows that the
accused obtained loan from the complainant also. Hence, the
argument put forth on the side of the accused stating that he gave
the disputed cheque to the husband of the complainant for the loan
obtained by him is not at all acceptable.
11.Further, the accused admitted his signature in the
disputed cheque, but he failed to rebut the presumption. When once
the accused admitted his signature in the disputed cheque, unless
and until, contrary is proved, it is presumed that the accused
obtained loan amount from the complainant and gave the cheque.
https://www.mhc.tn.gov.in/judis/
But the trial court wrongly came to the conclusion that the accused
rebutted the presumption and acquitted the accused. Hence, it is
necessary to interfere into the finding given by the trial court.
12.In view of the above discussion, this court is of the
considered view that the impugned judgment passed by the trial
court is liable to be set aside and accordingly, it is set aside.
13.In the result, this Criminal Appeal is allowed, by setting
aside the impugned judgment of the trial court. The accused is
found guilty under section 138 of the Negotiable Instruments Act
and he is directed to pay Rs.3,00,000/- as compensation to the
complainant, within a period of 4 weeks from the date of receipt of
a copy of this order.
Post the matter after 4 weeks for reporting compliance.
30.07.2021
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis/
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the advocate/
litigant concerned.
https://www.mhc.tn.gov.in/judis/
T.KRISHNAVALLI,J
er
To,
The Judicial Magistrate No.1,
Dindigul.
Judgment made in
Crl.R.C(MD)No.184 of 2021
30.07.2021
https://www.mhc.tn.gov.in/judis/
