Madras High Court
V.Sadasivam vs N.Vijayakumar on 1 August, 2022
Crl.A.No.393 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01..08..2022
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Criminal Appeal No.393 of 2019
V.Sadasivam,
Proprietor,
KVS Traders,
30-A, Trichy Road,
Ondipudur Post,
Kamatchipuram,
Coimbatore 641 016.
... Appellant
-Versus-
N.Vijayakumar,
Proprietor,
Vijaya Associates,
54,Meenakshi Garden,
Kumaran Avenue,
Vadamadurai,
Coimbatore 641053.
... Respondent
Appeal filed under Section 378 of The Code of Criminal Procedure,1973,
praying to call for the records in C.A.No.92 of 2016 on the file of the V
Additional District and Sessions Judge, Coimbatore and in C.C.No.689 of 2013
on the file of the learned Judicial Magistrate, Fast Track Court-I at Magisterial
Level, Coimbatore and set aside the order of acquittal dated 20.12.2017 made in
C.A.No.92 of 2016 by the learned V Additional District and sessions Judge,
Coimbatore, reversing the Judgment of conviction and sentence dated 13.06.2016
1 of 7
https://www.mhc.tn.gov.in/judis
Crl.A.No.393 of 2019
recorded by the learned Judicial Magistrate, Fast Track Court-I @ Magisterial
Level, Coimbatore.
For Appellant : Mr.K.S.Karthik Raja
For Respondent : No Appearance
JUDGEMENT
This Appeal is filed against the acquittal of the respondent/accused by the
learned V Additional District and Sessions Judge, Coimbatore, by judgment
dated 20.12.2017 in C.A.No.92 of 2016, in and by which, the appeal preferred
by the respondent/accused against the judgment of the learned Judicial
Magistrate, Fast Track Court-I at Magisterial Level, Coimbatore in C.C.No.689
of 2013 was allowed and the respondent/accused was acquitted for the offence
under Section 138 of the Negotiable Instruments Act, 1881.
2. By Judgment dated 13.06.2016, the respondent/accused was convicted
by the trial court for offence under Section 138 of the NI Act and was sentenced
to undergo simple imprisonment for 6 months and to pay a fine of Rs.3,000/- in
default of payment of fine, the respondent/accused was ordered to suffer simple
imprisonment for a further period of 3 months.
2 of 7
https://www.mhc.tn.gov.in/judis
Crl.A.No.393 of 2019
3. The case of the appellant/complainant is that the appellant had lent a
sum of Rs.5,48,000/- as hand loan on 15.03.2012 and for repayment thereof , the
respondent/accused had issued a cheque dated 21.05.2012 and upon presenting
the same, the same was returned dishonored and even though statutory notice
was sent, the same was refused and the appellant neither issued any reply nor
paid the cheque amount within the statutory period and hence, the offence.
4. The first appellate court considered the following factors, established by
the respondent/accused by cross examination of the complainant and from the
materials available on record:-
(i) The date of borrowal was not mentioned at the earliest point of time in
Ex.P.4 notice;
(ii) The respondent /accused has issued the cheque in the name of
proprietory concern by name Vijaya Associates to and in favour of the
appellant/complainant concern namely, KVS Traders and it has been the specific
contention of the accused that both the firms were involved in the transactions of
exporting rice and cereals, but, however, the total denial of the complaint
expressing ignorance about the business of the accused as well as stating that
3 of 7
https://www.mhc.tn.gov.in/judis
Crl.A.No.393 of 2019
they have no any dealings with the accused is not inspiring the confidence of the
court;
(iii) The first appellate court took note of the further circumstance that
while advancing a huge amount of Rs.5,48,000/- absolutely, no document
whatsoever had been taken, especially, when the amount is alleged to have been
paid by way of cash;
(iv) The appellate court also took note of the circumstance that absolutely
no evidence whatsoever was forthcoming from the complainant that he has got
such huge sum of Rs.5,48,000/- on the said date so as to advance it to the
respondent/accused;
(v) The first appellate court further took into consideration the fact that
even though such huge amount of Rs.5,48,000/- is lent by way of loan, the
complaint or the complainant does not speak about any interest component and
all the above circumstances probabilize the possible defence of the accused that
there were earlier transactions between the complainant and the accused and that
the cheque which was given as security at the time of those transactions is being
misused. When there is probability of the defence of the accused, the first
appellate court has come to the conclusion that the accused has rebutted the
4 of 7
https://www.mhc.tn.gov.in/judis
Crl.A.No.393 of 2019
presumption. Further the first appellate court has held that once the accused has
rebutted the presumption and there is no further evidence on behalf of the
complainant in support of the transaction, the accused is entitled to acquittal.
5. A perusal of the above said reasonings and the evidence on record in the
case would clearly demonstrate that on a clear and categorical re-appreciation of
the evidence, the appellate court has acquitted the accused and therefore, no
exception can be taken for the said findings of the appellate court by way of this
appeal. Thus, I find no merits in the appeal, especially, any strong reason to
convert the findings of acquittal into one of guilty and as such criminal appeal
deserves only to be dismissed.
In the result, this Criminal Appeal is dismissed and the judgment of
acquittal recorded by the first appellate reversing the conviction and sentence of
the respondent/accused by the trial court is confirmed.
Index : yes/no 01..08..2022
Internet : yes/no
Speaking / Non speaking Order
kmk
5 of 7
https://www.mhc.tn.gov.in/judis
Crl.A.No.393 of 2019
To
1.The V Additional District and Sessions Judge, Coimbatore
2.The Judicial Magistrate, Fast Track Court-I at Magisterial Level, Coimbatore.
6 of 7
https://www.mhc.tn.gov.in/judis
Crl.A.No.393 of 2019
D.BHARATHA CHAKRAVARTHY.J.,
kmk
Crl.A. No.393 of 2019
01..08..2022
7 of 7
https://www.mhc.tn.gov.in/judis
