Madras High Court
M.Shankaran vs R.Kothandan on 5 April, 2022
Crl.O.P.No.16774 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.O.P.No.16774 of 2020
in Crl.A.SR.No.28627 of 2020
M.Shankaran ... Petitioner
Vs.
R.Kothandan ...Respondent
PRAYER: Criminal Original Petition has been filed under Section 378(1) of
Cr.P.C., praying to leave to file appeal in S.T.C.No.1226 of 2018 on the file of
the Judicial Magistrate Court No.1 at Ponneri by its judgment dated 10.02.2020.
For Petitioner : Mr.S.M.Nandhie Devhan
For Respondent : Mr.A.M.Rahamath Ali
ORDER
This Criminal Original Petition has been filed by the petitioner for
granting leave to prefer an appeal as against the judgment dated 10.02.2020
made in S.T.C.No.1226 of 2018 on the file of the learned Judicial Magistrate
No.1, Ponneri.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.16774 of 2020
2. The case of the petitioner is that he is a complainant in
S.T.C.No.1226 of 2018 on the file of the learned Judicial Magistrate No.1,
Ponneri. The said complaint has been preferred by the petitioner as against the
respondent alleging that the respondent committed the offence punishable under
Section 138 of Negotiable Instruments Act (herein after referred to as “NI
Act”). The trial Court after elaborate trial and after disbelieving the case of the
petitioner, by the judgment dated 10.02.2018, dismissed the complaint and
ultimately acquitted the accused. Now the petitioner is intended to challenge the
order of acquittal by way of filing this petition.
3. Heard Mr.S.M.Nandhie Devhan, learned counsel appearing for the
petitioner and Mr.A.M.Rahamath Ali, learned counsel appearing for the
respondent.
4. Now on going through the averments found in the complaint, the
petitioner has narrated his case as, in the year 2008, the respondent availed a
sum of Rs.50,00,000/- and thereafter in order to discharge the said liability, he
issued two cheques each for a sum of Rs.25,00,000/- dated 04.05.2018 and
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.16774 of 2020
08.05.2018. Thereafter, due to the reason that the cheques given by the
respondent were dishonoured, the petitioner preferred the complaint after
complying the statutory formalities found in the NI Act.
5. Now on going through the impugned judgment, the trial Court has
categorically held that from the year 2012 onwards, the petitioner and the
respondent are not having any relationship and therefore, the question of
issuance of cheque in the year 2018 is impossible. Further in the cross-
examination the petitioner/complainant has stated that he is a coolly and he
earns Rs.500/- per day. Further he has stated that for the past several years he
was working as coolly and also his wife is a home maker and not attended any
work.
6. Only after relying upon the judgment of the Hon'ble Apex Court
held in Crl.A.No.452 of 2004 dated 15.12.2010 in the case of Simon C
Abraham Vs. State of Kerala and also the judgment of this Court reported in
2019(2) MLJ (Crl) 327 in the case of Basalingappa Vs. Mudibasappa, the trial
Court came to the conclusion that the initial burden of proof has not been
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.16774 of 2020
discharged by the complainant and therefore the offences under Section 138 of
NI Act are attracted.
7. The said observation given by the trial Court is well within the law.
In fact, the complainant is having the duty to prove the initial burden as he is a
capable man to lend the money of Rs.50,00,000/- at one stretch. Further it is
unbelievable in this case that, for the loan given in the year, 2008, he received
the cheques in the year 2018. That itself would sufficient to disbelieve the case
of the petitioner. Accordingly, this Court is of the opinion that the reasoning
given by the petitioner in this petition to leave to file appeal is not satisfactory
one and therefore, prima facie, this Court is not convinced that any arguable
point in the appeal.
8. In view of the above discussion, this Criminal Original Petition
stands dismissed.
05.04.2022
Speaking/Non-speaking order
Index: Yes / No
Internet: Yes
rts
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.16774 of 2020
To
The Judicial Magistrate No.1,
Ponneri
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.16774 of 2020
R.PONGIAPPAN,J.
rts
CRL.O.P.No.16774 of 2020
in Crl.A.SR.No.28627 of 2020
05.04.2022
https://www.mhc.tn.gov.in/judis
