Madras High Court
P.Rajalingam vs Arunagiri on 5 April, 2022
Crl. A(MD) No. 262 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl. A(MD) No. 262 of 2022
P.Rajalingam ...Petitioner
Vs.
1.Arunagiri,
Pazhaniyandavar Match works,
Omanaakulam,
Kadampur Via,
Tuticorin District.
2. Pazhaniyandavar Match Works,
Omannakulam,
Kadampur Via,
Tuticorin District ...Respondents
PRAYER: Criminal Appeal filed under Section 378 of Cr.P.C to set aside the
order passed by the learned Judicial Magistrate No.II, Sattur in C.C.No.123 of
2018 on 04.03.2022
For Appellants : Mr.M.Jothi Basu
JUDGMENT
This Criminal Appeal has been preferred as against the order of
acquittal of the respondent in CC No.123 of 2018, on the file of the learned
Judicial Magistrate No.II, Sattur for the offences under Section 138 of the NI Act.
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Crl. A(MD) No. 262 of 2022
2. The learned counsel for the petitioner would submit that trial Court
without considering the fact that the first respondent admitted his signature
found in Ex.P.1 and as per Section 118 and 139 of the Negotiable Instruments
Act, it is the duty of the trial Court to presume the fact that it was issued for
legally enforceable debt or liability. On 05.01.2018, the first accused had
borrowed a sum of Rs.12,00,000/- and on 30.04.2018, in order to repay the
same, the first accused issued Ex.P.1/cheque and when the same was presented
for collection it was returned for the reason 'Funds Insufficient'. After causing
statutory notice, the petitioner filed a compliant for the offence under Section
138 of the NI Act.
3. On a perusal of the document, it would reveal that the petitioner
lodged a complaint for the offence under Section 138 of the NI Act, alleging that
the first accused had borrowed a sum of Rs.12,00,000/- for himself, his business
and for his family expenses. In order to repay the same, the first accused issued
a cheque for a sum of Rs.12,00,000/- drawn on State Bank of India, Kovilpatti
Branch. It was presented for collection and the same was returned for the
reason 'Funds Insufficient'. After causing statutory notice under Section 138 of
the NI Act, the petitioner lodged a complaint and the trial Court after taking
cognizance, had issued summons.
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Crl. A(MD) No. 262 of 2022
4. On the side of the petitioner he was examined as PW.1 and marked
document Ex.P.1 to Ex.P.7. On the side of the respondent, none was examined
but documents Ex.D.1 to Ex.D.3 were marked.
5. The defence taken by the accused is that there is no legally
enforceable debt between the first accused in favour of the petitioner herein.
Further, the case of the respondent is that the alleged cheque was given as a
security in favour of one Parthiban, which was wrongly filled up by the
complainant, which amounts to an alteration in the instrument and as such it
becomes void. When it being so, the cheque was filled by the complainant
without the consent of the accused and as such, he has not shown any interest
to invoke the presumption under Section 118 of the NI Act. However, the
accused failed to prove that the cheque was issued for security purpose,
whereas, one Parthiban has misused the same. Therefore the statutory
presumption under Section 118(a) and 139 of the NI Act is in favour of the
complainant. The said statutory provision is rebuttable. The accused can rebut
the presumption either by let in evidence or by preponderance of probabilities. .
The standard of proof required to rebut the presumption has been discussed by
the Hon'ble Apex Court in Basalingappa vs Mudibasappa in Criminal
Appeal No.636 of 2019.
https://www.mhc.tn.gov.in/judis
Crl. A(MD) No. 262 of 2022
6. A persual of the deposition of PW.1 reveals that the notice, dated
20.12.2017 which was marked as Ex.D.1 was issued to the accused by one
Ramprasath and Parthiban demanding a sum of Rs.3,00,000/-. D2 is the reply
notice, dated 30.12.2017 which was given stating that the complainant was not
at all known to them. DW.3 is the acknowledgement card which was received
by his Advocate on 01.01.2018. As per the complaint, the petitioner has deposed
that he has advanced Rs.12,00,000/-as loan to the accused on 05.01.2018.
Immediately after three days from the date of receipt of reply notice namely,
DW.2, wherein, it has been stated that the complainant was not at all known to
the accused. Therefore it is highly improbable that an ordinary prudent man
advance loan to a person in such circumstance i.e., 3 days after receipt of reply
notice from the accused that the complainant was not all known to him.
Therefore the argument advanced in respect of cheque transaction amount is
unbelievable. Further on the date of borrowal of the loan, the accused executed
a promissory note in favour of the complainant and the complainant returned the
promissory note before settling the loan amount, is unbelievable. Therefore the
Court below had rightly acquitted the respondent,which does not warrant any
interference by this Court.
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Crl. A(MD) No. 262 of 2022
7. In the result, the Criminal Appeal stands dismissed.
05.04.2022
Index : Yes/No
Internet : Yes/No
aav
To
1. The Judicial Magistrate No.II,
Sattur.
2.The Record keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl. A(MD) No. 262 of 2022
G.K.ILANTHIRAIYAN.J.
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JUDGMENT MADE IN
Crl. A(MD)No.262 of 2022
05.04.2022
https://www.mhc.tn.gov.in/judis
