Madras High Court
Kalaiarasi vs Gopi Prasanna on 8 September, 2021
Crl.A.No.802 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.802 of 2019
Kalaiarasi
...Appellant
Vs.
Gopi Prasanna ...Respondent
Criminal Appeal Case filed under Sections 378 of Cr.P.C. to set aside
and revise the judgment and order of acquittal passed in Crl.A.No.75 of
2018, dated 04.09.2019 by the learned Additional District and Sessions
Judge, Fast Track Court, Villupuram, reversing the judgment of conviction
passed in C.C.No.51 of 2016 by the learned Judicial Magistrate No.1,
Villupuram, Dated 05.09.2018.
For Appellant : Mr.Suresh for M/s.J.Lenin
For Respondent : Mr.R.Ragavendran for
M/s.S.Murali
*******
JUDGMENT
The criminal appeal has been filed against the reversal
judgment of acquittal passed by the learned Additional District and Sessions
Judge, Fast Track Court, Villupuram, in C.A.No.75 of 2018 dated
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Crl.A.No.802 of 2019
04.09.2019 reversing the judgment of conviction passed in C.C.No.51 of
2016 by the learned Judicial Magistrate No.1, Villupuram, Dated
05.09.2018.
2 The appellant is a complainant and the respondent is an
accused. The appellant filed a private complaint under Section 200 of
Cr.P.C. against the respondent for the offence under Section 138 and 142 of
Negotiable Instruments Act (in short “the NI Act”) and the same was taken
on file in C.C.No.51 of 2016 by the learned Judicial Magistrate No.I,
Villupuram. The learned Magistrate, after trial, by judgment dated
05.09.2018, convicted the petitioner and sentenced him to undergo simple
imprisonment for a period of six months and ordered to pay the cheque
amount of Rs.10,00,000/- to the complainant within a period of one month
from the date of pronouncement of the judgment by the trial Judge.
Aggrieved against the same, the respondent/accused filed an appeal in
C.A.No.75 of 2018 and the learned Additional District and Sessions Judge
(Fast Track Court), Villupuram, by judgment dated 04.09.2019 allowed the
appeal and acquitted the respondent/accused by setting aside the judgment
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Crl.A.No.802 of 2019
of conviction passed by the trial Court. Assailing the reversal judgment of
acquittal, the complainant is now before this Court with the present criminal
appeal.
3 The learned Counsel for the appellant would submit that
respondent has not denied his signature found in the cheque and execution
of the cheques and he has only taken the defence that he repaid the amount,
but he failed to prove the same. Even though the trial Court, on appreciation
of evidence in a right manner convicted the respondent, the lower appellate
Court has failed to appreciate the evidence in a proper manner and wrongly
acquitted the respondent/accused, which warrants interference of this Court.
4 The learned counsel appearing for the respondent would submit
that even though the appellant himself stated that in the year 2013 he lent a
sum of Rs.5,00,000/- by obtaining promissory note and subsequently he also
lent Rs.4,00,000/-, but, he has not produced the promissory note said to
have obtained by him. There are contradictions between the contents of
statutory notice and the promissory note and also the evidence of the
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Crl.A.No.802 of 2019
appellant/complainant with regard to the reasons for obtaining loan and
date of issue of cheque. Hence, even though the trial Court convicted the
respondent, the lower appellate after appreciating the above facts, rightly
acquitted the respondent, which does not call for any interference.
5 Heard the learned counsel appearing on either side and
carefully perused the materials placed on record.
6 The case of the appellant/complainant is that on 15.12.2013,
the respondent/accused borrowed a sum of Rs.5,00,000/- for construction of
house and to meet out his family expenses and promissory notes were also
obtained by the appellant and later without repaying the above amount
borrowed Rs.4,00,000/- and the respondent has not repaid any amount.
Hence the appellant filed a complaint before Police Station and FIR also
came to be registered in 84/2014 and thereafter the respondent executed a
cheque bearing No.019011 dt:04.03.2015 for Rs.10,00,000/-, when the
appellant presented the same for collection, the same was returned with an
endorsement “payment stopped by drawer”. Hence the appellant issued
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Crl.A.No.802 of 2019
notice on 11.03.2015, the same was returned as unserved and therefore the
appellant has filed the present complaint against the respondent for the
offence under Section 138 and 142 of the NI Act.
7 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
same, when the accused took a defense that he has repaid the amount, the
complainant should have taken effective steps to disprove the same. Even
though, the burden of proof by the complainant is not as heavy as that of the
accused, 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 itself 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 came to the
conclusion that the appellant/complainant failed to prove his case and hence
acquitted the respondent/accused.
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Crl.A.No.802 of 2019
8 This Court, while exercising revisional jurisdiction, cannot
exercise power of the Appellate Court and this Court, being a revisional
Court, cannot sit in the arm chair of appellate Court and it has no power to
re-assess the evidence and substitute its views on findings of fact. It can only
see whether there is any perversity in appreciation of evidence by the Courts
below.
9 A careful reading of the materials placed before this Court, it is
seen that the petitioner obtained two promissory notes from the
respondent/accused at the time of lending money to the accused. If at all the
respondent/accused failed to repay the money as stated by the
appellant/complainant, he should have approached the Civil Court to get
relief, instead, he has approached the Police and hence this Court suspects
the genuineness of the case of the appellant/complainant. Further, 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
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Crl.A.No.802 of 2019
complainant by pointing out the contradictions between the evidence of
appellant/complainant and the documents marked by him. It is for the
appellant/complainant to prove that there is legally enforceable debt and this
Court is of the view that the appellant 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.
10 In fine, this Court does not find any reason to interfere with the
judgment of acquittal passed by the learned Additional District and Sessions
Judge, (Fast Track Court), Villupuram. Accordingly, this criminal appeal
shall stands dismissed in the admission stage itself.
08.09.2021
Index : Yes/No
pbl/cgi
To
1. The Additional District and Sessions Judge, Fast Track Court,
Villupuram.
2. The Judicial Magistrate No.1, Villupuram.
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Crl.A.No.802 of 2019
P.VELMURUGAN, J.,
cgi
Crl.A.No.802 of 2019
08.09.2021
http://www.judis.nic.in
