Madras High Court
Perumal Pillai vs Kanakam on 22 March, 2022
CRL.A.(MD).No.222 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.A.(MD).No.222 of 2022
Perumal Pillai ... Appellant/Complainant
Vs.
Kanakam ... Respondent/Sole Accused
PRAYER : Criminal Appeal filed under Section 378(4) of Cr.P.C to call
for the records and set aside the Judgment of acquittal in S.T.C.No.
97 of 2016, dated 26.07.2017 on the file of the learned Judicial
Magistrate, Padmanabhapuram and convict the respondent/accused
for the offence under Section 138 of the Negotiable Instruments Act
and to pay compensation to the appellant/complainant.
For Appellant : Mr.T.Nelson
1/6
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CRL.A.(MD).No.222 of 2022
JUDGMENT
This Appeal has been directed as against the Judgment made
in S.T.C.No.97 of 2016, dated 26.07.2017 on the file of the learned
Judicial Magistrate, Padmanabhapuram, thereby acquitted the
respondent for the offence punishable under Section 138 of the
Negotiable Instruments Act.
2.The appellant is the complainant and lodged a complaint for
the offence punishable under Section 138 of the Negotiable
Instruments Act as against the respondent alleging that the
respondent borrowed a sum of Rs.3,00,000/- from the appellant as
a hand loan with an undertaking that he would repay the same
within a month. In discharge of the said debt, the respondent issued
cheque and the same was presented for collection through his
banker. It was returned dishonoured with an endorsement that the
funds insufficient. After causing statutory notice as contemplated
under Section 138(b) of the Negotiable Instruments Act, lodged the
complaint and the same has been taken cognizance in S.T.C.No.97
of 2016 on the file of the learned Judicial Magistrate,
Padmanabhapuram.
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CRL.A.(MD).No.222 of 2022
3.On the side of the appellant, he himself was examined as
P.W.1 and marked Ex.P.1 to Ex.P.3 and on the side of the
respondent, D.W.1 and D.W.2 were examined and marked Ex.D.1
and Ex.D.2.
4.The trial Court, after considering the oral and documentary
evidence, acquitted the respondent and dismissed the complaint.
Aggrieved by the same, the present Criminal Appeal has been
preferred by the appellant.
5.Heard the learned counsel appearing for the appellant and
perused the materials available on record.
6.On a perusal of the records revealed that except the cheque
which was marked as Ex.P.1, the appellant failed to mark any
document to show that the said cheque was presented for collection
and returned for the reason 'funds insufficient'. Instead of original
return memo, the appellant produced copy of the return memo in
which, there is no seal from its banker and Ex.P.1 was presented for
collection on 11.01.2016 and the same was returned on
12.03.2016. Whereas the statutory notice which was marked as
Ex.P.2 revealed that the cheque Ex.P.1 was issued on 08.11.2015.
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CRL.A.(MD).No.222 of 2022
The respondent had taken specific stand that the appellant had no
source of money to lend a sum of Rs.3,00,000/-. In this regard, the
appellant deposed that he is doing banana business as wholesale
and retail.
7.Once the execution of cheque is admitted under Section 139
of the Negotiable Instruments Act mandates a presumption that the
cheque was for the discharge of any debt or other liability. The
presumption under Section 139 of the Negotiable Instruments Act
is a rebuttable presumption and the onus is on the accused to raise
the probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities. To rebut the
presumption, it is open for the accused to rely on evidence led by
him or the accused can also rely on the materials submitted by the
complainant in order to raise a probable defence. Therefore, the
respondent has the right to demonstrate that the appellant did not
have the capacity and therefore, the case of the respondent is
acceptable where he can do by producing independent materials,
namely, by examining his witnesses and producing documents. He
can also achieve this result through the cross examination of the
witnesses of the complainant.
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CRL.A.(MD).No.222 of 2022
8.The specific case of the respondent is that he never
borrowed any loan from the appellant and Ex.P.1 was given as
security in favour of one Raj, S/o.Sundaram. Therefore, the
appellant is bounden duty to prove that he had source of income to
lend a sum of Rs.3,00,000/- to the respondent. The appellant failed
to prove the same and in fact, he failed to produce the return memo
of Ex.P.1. Hence the appellant failed to prove his case and the Court
below rightly dismissed the complaint and this Court finds no
infirmity or illegality in the order passed by the Court below.
Accordingly, this Criminal Appeal is devoid of merits and the same is
dismissed.
22.03.2022
Index: Yes/No
Internet: Yes
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.222 of 2022
G.K.ILANTHIRAIYAN, J.
ps
To
The Judicial Magistrate,
Padmanabhapuram.
CRL.A.(MD).No.222 of 2022
22.03.2022
https://www.mhc.tn.gov.in/judis
