S.Karthikeyan vs P.Panchali
2021 Latest Caselaw 18160 Mad

                                                                              Crl.A.No.693 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 06.09.2021

                                                        Coram:


                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN


                                               Crl.A.No.693 of 2019
                  S.Karthikeyan
                                                                            ...Appellant
                                                         Vs.
                  P.Panchali
                                                                            ...Respondent


                  prayer: The Criminal Appeal is filed under Section 378 of the Code of
                  Criminal Procedure praying to set aside the order of acquittal dated
                  18.07.2018 passed in C.A.No.109 of 2017 on the file of the learned I
                  Additional District Judge, Salem, reversing the Judgment dated 23.01.2017
                  passed in S.T.C. No. 136 of 2016 on the file of the learned Judicial
                  Magistrate No.III, Salem, convicting and sentencing the respondent to
                  undergo simple imprisonment for six months and to pay fine amount
                  Rs.5,000/- for the offence under Section 138 of the Negotiable Instruments
                  Act, 1881, by allowing this Criminal Appeal.


                                        For Appellant      :     Mr.J.Hariharan
                                                                 for M/s.KV Law Firm
                                        For Respondent    :      Mr.T.T.Ravichandran
https://www.mhc.tn.gov.in/judis


                  1/11
                                                                                Crl.A.No.693 of 2019

                                                    JUDGMENT

(The case has been heard through video conference)

The appellant is the complainant, the respondent is the accused. The

appellant/complainant had filed a private complaint against the

respondent/accused under Section 200 Cr.P.C. for the offence under Section

138 of the Negotiable Instruments Act, before the learned Judicial Magistrate

III, Salem. The learned Magistrate taken the complaint on file in STC.No.136

of 2016 and after due enquiry, convicted the respondent/accused for the

offence under Section 138 of the Negotiable Instruments Act and sentenced

him to undergo 6 months simple imprisonment and to pay a fine of Rs.5,000/-

in default, to undergo simple imprisonment for a period of 1 month.

2. Challenging the said Judgment of conviction and sentence, the

respondent/accused filed an appeal before the learned Principal District and

Sessions Judge, Salem, and the same was taken on file in Crl.A.No.109 of

2017.

https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

3. The appellant/complainant also preferred a criminal revision before

the learned Principal District and Sessions Judge, Salem, seeking

compensation as double the cheque amount payable to the

appellant/complainant by the respondent/accused and the same was taken on

file in Crl.R.C.No.42 of 2017.

4. The learned Principal District and Sessions Judge, made over both

the criminal appeal and revision to the learned I Additional District and

Sessions Judge, Salem, and the learned Sessions Judge, after hearing the

arguments on either side, allowed the appeal filed by the respondent/accused

and set aside the conviction and sentence passed by the learned Magistrate

and dismissed the revision filed by the appellant/complainant by order dated

18.07.2018.

5. Now, challenging the said Judgment of acquittal of the

respondent/accused, passed by the learned I Additional District and Sessions

Judge, Salem, the complainant has filed the present appeal before this Court.

6.The learned counsel appearing for the appellant/complainant would

submit that the respondent/accused has categorically admitted the signature https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

and also execution of cheque. Once, the accused admitted the execution of

cheque and the signature found on the same, presumption under Section 139

of Negotiable Instruments Act would come into play that the cheque is

executed for discharge of legally enforceable debt/liability. Though the

learned Magistrate rightly appreciated the evidence and convicted the

respondent/accused, the Appellate Court failed to appreciate the factual

findings of the case as well as the legal procedure and erroneously set aside

the Judgment of conviction passed by the learned Magistrate. He would

further submit that it is for the accused to rebut the presumption in the manner

known to law. To support his contention, the learned Counsel placed reliance

on the Judgment of the Hon'ble Supreme Court in the case of Uttam Ram Vs.

Devinder Singh Hudan reported in (2019) SCC Online SC 1361 and

Rangappa Vs. Sri Mohan reported in 2010 (4) CTC 118 (SC) and would

submit that this appeal has to be allowed and the Judgment of the Appellate

Court has to be set aside and the Judgment of conviction and sentence passed

by the learned Magistrate has to be restored.

7.The learned counsel for the respondent/accused would submit that

even though the signature is admitted and execution has not been disputed,

the presumption under Section 139 of the Negotiable Instruments Act is a https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

rebuttable presumption. The complainant has to prove that there is legally

enforceable debt beyond all reasonable doubts. In this case, the learned

Magistrate erroneously convicted the respondent drawing presumption under

Section 139 of NI Act. Further, he would submit that the

appellant/complainant has not established that on the date of borrowal, the

respondent/accused had executed any document for repaying the loan amount

and the appellant/complainant has admitted that the respondent/accused had

not executed any document. Therefore, the case of the

appellant/complainant is not a natural one and no man would lend money

without getting any document for security and therefore the case of the

appellant was dis-believed by the Appellate Court. In this case, on the date

of alleged initial transaction, the appellant/complainant admitted that he did

not obtain any document for the loan. Therefore, under these circumstances,

when two views are possible, the benefit of doubt should always be extended

to the accused. Since, the appellate Court is a final Court of fact finding, it

can only re-appreciate the entire evidence and can give its independent

findings. As such, the learned I Additional District and Sessions Judge, has

re-appreciated the entire evidence and given his independent findings. In the

appeal against acquittal, unless compelled circumstances is warranted, the

Court would not interfere and since the appellate Court found the accused not https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

guilty, set aside the judgment of conviction passed by the trial Court.

Therefore, in this case there is no merit in the appeal and appeal is liable to

be dismissed.

8. Heard the learned counsel for the appellant/complainant and the

learned counsel for the respondent/accused and also perused the material

available on record.

9. The case of the complainant is that the respondent/accused had

borrowed a sum of Rs.2,00,000/- on 28.05.2014 and Rs.3,00,000/- on

28.08.2014 for her urgent family and business necessity and agreed to repay

the same with interest at 18% p.a. to the complainant. Subsequently, the

respondent/accused paid the interest for the said total principle amount of

Rs.5,00,000/- to the complainant till 28.10.2014 and to discharge the said

debt and liability i.e. Rs.5,00,000/-, the accused signed and issued a duly

filled cheque bearing No.068818 for a sum of Rs.5,00,000/- dated 28.10.2014

drawn on ICICI Bank, Salem, in favour of the complainant on 28.10.2014

and as per the request of the accused, the complainant presented the cheque

for collection in his bank at Pallavan Grama Bank, Salem Main Branch on

28.10.2014. But the same was dishonoured on the ground “Funds https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

Insufficient” and in order to realize the cheque amount, the complainant

issued a legal notice on 17.11.2014 under Section 138(b) of the Negotiable

Instruments Act to the respondent/accused calling upon her to pay the cheque

amount within 15 days from the date of the receipt of the notice and the

respondent/accused received the notice on 19.11.2014. But, she neither paid

the cheque amount, nor sent any reply notice. Hence the complaint was made

before the Magistrate.

10. In order to substantiate the complaint, on the side of the

complainant, the appellant/complainant was examined as P.W.1 and 4

documents were marked as Exs.P1 to P4. On the side of the defence, 4

documents were marked as Exs.D.1 to D4.

11. Even though the respondent not entered into the witness box and

denied the execution of the cheque and the signature found on the same,

during the cross examination, he clearly stated that the cheque was given only

for security purpose.

12. It is seen that even though the appellant/complainant contended

that there is no denial of execution of cheque and the signature found on the https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

same, the accused took a defense that he has repaid the amount and the

cheque was issued only for security purpose. In that case, the complainant

should have taken effective steps to disprove the same as the burden of proof

by the accused is not as heavy as that of the complainant and it is for the

complainant to prove that there is legally enforceable debt. The accused can

always establish his defense through preponderance of probabilities. In this

case, the respondent/accused has disproved the case of the complainant from

the evidence of the complainant and marked four documents through

P.W.1/complainant and the appellant/complainant miserably failed to

establish the fact that there is legally enforceable debt. Hence the lower

appellate Court, being a final Court of fact finding, has re-appreciated entire

evidence and after analyzing the cross examination of P.W.1/complainant and

D1 to D4 marked through P.W.1, came to the conclusion that the

appellant/complainant failed to prove his case and his case is highly

improbable and hence acquitted the respondent/accused.

13. There is no quarrel with the proposition of law laid down by the

Hon'ble Supreme Court referred to by the learned counsel for the

appellant/complainant. However, a criminal case has to be decided on the

basis of facts and evidence available and not on precedents. Therefore, https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

considering the facts and circumstances, the lower appellate Court re-

appreciated the evidence and found that the appellant/complainant has not

proved his case beyond all reasonable doubt and the presumption has been

rebutted by the respondent/accused by preponderance of probabilities.

14. A careful reading of the materials placed before this Court, it is

seen that while lending money to the respondent/accused, the

appellant/complainant did not obtain any document. As per the

appellant/complainant, he received the subject cheque not on the date of

lending money, which are all creates doubts in the case of the

appellant/complainant. Even though, the trial Court convicted the

respondent/accused, the lower appellate Court, after re-appreciating the

entire evidence and after analyzing the documents marked on either side,

found the appellant/complainant has not proved his case beyond all

reasonable doubts and acquitted the respondent/accused. Normally, the

Court, will not interfere with the order of acquittal, unless there is any

compelled circumstances warranting interference with the judgment of

acquittal. In this case, the respondent/accused has disproved the case of the

complainant by pointing out the contradictions between the evidence of

appellant/complainant and the documents marked by him through

P.W.1/complainant. It is for the appellant/complainant to prove that there is https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

legally enforceable debt and this Court is of the view that the

appellant/complainant failed to prove the same. When two views are

possible, the view which favours the accused has to be taken into

consideration and benefits of doubt should be extended to the accused.

15. In fine, this Court does not find any reason to interfere with the

judgment of acquittal passed by the learned I Additional District Judge,

Salem, and there is no merit in the appeal and the appeal is liable to be

dismissed.

16. Accordingly, this criminal appeal shall stand dismissed.

06.09.2021

ksa-2/dsn

To

1. The Additional District Judge, Salem

2. The Judicial Magistrate No.III, Salem

https://www.mhc.tn.gov.in/judis

Crl.A.No.693 of 2019

P.VELMURUGAN, J.

ksa-2

Crl.A.No. 693 of 2021

06.09.2021

https://www.mhc.tn.gov.in/judis