Madras High Court
P.Subramani vs R.Rajavel on 2 November, 2022
Crl.A.No.344 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.11.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.344 of 2018
P.Subramani ... Appellant
Vs.
R.Rajavel ...Respondent
PRAYER: Criminal Appeal filed under Section 378 of the Code of Criminal
Procedure, to set aside the judgment passed in CA.No.45 of 2017 dated
09.11.2017 on the file of II Additional District and Sessions Judge, Salem
reversing the judgment passed in STC.No.61 of 2014 dated 28.03.2016 on the
file of the Judicial Magistrate(Fast Track Court), Omalur, Salem District and to
allow the criminal appeal.
For Appellant : Mr.R.Nalliyappan
For Respondent : Mr.S.Vinoth Kumar
for Mr.G.Arul Murugan
JUDGMENT
This criminal appeal is directed as against the order passed in
Crl.A.No.45 of 2017 dated 09.11.2017 on the file of the II Additional District
and Sessions Judge, Salem, thereby reversed the findings made in STC.No.61 of
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Crl.A.No.344 of 2018
2014 on the file of the learned Judicial Magistrate, Fast Track Court, Omalur,
thereby convicted the respondent for the offence punishable under Section 138
of NI Act.
2. The appellant / complainant lodged complaint for the offence
punishable under Section 138 of NI Act against the respondent herein. The crux
of the complaint is that the complainant had acquaintance with the respondent
on the purchase of siddha and ayurvedic medicine for the past two years. While
being so, the respondent borrowed a sum of Rs.4,25,000/- on 22.01.2014 for
doing herbal medicine research. On the date of borrowal itself, the respondent
issued post dated cheque for a sum of Rs.4,25,000/-. On instruction, the
complainant presented the said cheque for collection and the same was returned
dishonoured for the reason 'insufficient funds'. The complainant caused
statutory notice and lodged complaint.
3. On the side of the complainant, he examined PW1 and PW2 and
marked Ex.P1 to Ex.P5. On the side of the respondent, he examined himself as
DW1 and marked Ex.D1 and Ex.D2. On perusal of oral and documentary
evidence produced by either side, the trial court found the respondent as guilty
for the offence punishable under Section 138 of NI Act and sentenced him to
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Crl.A.No.344 of 2018
undergo one year simple imprisonment with fine of Rs.5,000/-, in default to
undergo one month simple imprisonment. Aggrieved by the same, the
respondent filed appeal and the same was allowed and acquitted him from the
charge under Section 138 of NI Act. Aggrieved by the same, the defacto
complainant filed this appeal.
4. The learned counsel for the appellant would submit that the first
appellate court acquitted the respondent on the ground that the appellant failed
to prove the acquaintance between the appellant and the respondent herein to
borrow such huge amount. Further, the appellant had no source of income to
lend such huge amount. He further submitted that once the respondent failed to
deny the signature and issuance of cheque, the appellant discharged his initial
burden as contemplated under Section 138 of NI Act and there was a
presumption under Section 139 of NI Act that the cheque was issued for legally
enforceable debt. Though the said presumption is rebuttable in nature, the
respondent failed to rebut the presumption in the manner known to law.
Therefore, the trial court rightly convicted the respondent and the first appellate
court on wrong presumption, acquitted the respondent herein.
5. The learned counsel for the respondent would submit that the
alleged cheque was stolen and as such immediately, the respondent lodged
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Crl.A.No.344 of 2018
complaint and he was issued CSR. It was marked as EX.D1. In fact, after
lodgment of complaint, the respondent also made paper publication in respect of
the stolen cheque. Immediately after receipt of the statutory notice, the
respondent categorically denied the relationship between the appellant and the
respondent and denied the issuance of cheque. In fact, he stated in the reply
notice that already the cheque was stolen and he lodged complaint along with
paper publication. Therefore, even in the initial stage, the respondent rebutted
the presumption arising out of Section 139 of NI Act. Therefore, the appellate
court rightly acquitted the respondent herein for the offence punishable under
Section 138 of NI Act.
6. Heard, Mr.R.Nalliyappan, the learned counsel for the appellant and
Mr.S.Vinoth Kumar, the learned counsel for the respondent.
7. On perusal of records, revealed that the appellant lodged complaint
for the offence punishable under Section 138 of NI Act against the respondent
that he used to purchase siddha and ayurvedic medicines for the past two years.
Therefore, both had acquaintance with each other and while being so, the
respondent borrowed a sum of Rs.4,25,000/- to do his herbal medicine research.
On the date of borrowal of the amount, the respondent issued post dated cheque
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Crl.A.No.344 of 2018
and the same was presented for collection. The said cheque was marked as
Ex.P1. On perusal of Ex.P1, revealed that the signature and the other letters
found in different inks and the handwriting also differs each other. The date of
Ex.P1 is 31.03.2014, whereas the respondent lodged complaint alleging that the
cheque book containing cheque leaves bearing Nos.001636 to 001650 drawn on
Axis Bank was stolen from his custody before the Sub Inspector of Police,
Pallapatti Police Station, Salem. On receipt of the same, the Sub Inspector of
Police issued CSR No.83 of 2014 to the respondent, which was marked as
Ex.D1. Immediately, the respondent also made paper publication, which was
marked as Ex.D2. Both D1 and D2 revealed that the respondent had lost his
cheque book and immediately he lodged complaint as well as made paper
publication.
8. On receipt of the statutory notice, which was marked as Ex.P3, the
respondent had sent detailed reply, which was marked as Ex.P5. On perusal of
Ex.P5, revealed that the respondent denied the acquaintance with the appellant
and he denied the borrowal of any loan amount and issuance of cheque. When
the respondent rebutted the presumption arising out of Section 139 of NI Act,
the burden shifted to the shoulder of the appellant to prove his case. In order to
prove his case, except the cheque, which was marked as Ex.P1, no other
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Crl.A.No.344 of 2018
documents were produced by the appellant to prove his case. Further, he also
failed to bring on record any evidence to corroborate his evidence of advancing
the loan to the respondent herein.
9. Even according to the appellant, the respondent borrowed loan.
Except post dated cheque, no other documents were executed by the respondent
while borrowing loan. Therefore, the appellate court rightly reversed the
findings of the trial court and acquitted the respondent. As such, this Court finds
no infirmity or illegality in the judgment passed in CA.No.45 of 2017 dated
09.11.2017 on the file of II Additional District & Sessions Judge, Salem.
10. Accordingly, this criminal appeal is dismissed.
02.11.2022
Speaking/Non-speaking order
Index: Yes / No
Internet: Yes
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To
1.The learned II Additional District and Sessions Judge,
Salem
2.The Judicial Magistrate(Fast Track Court),
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Crl.A.No.344 of 2018
Omalur, Salem District
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Crl.A.No.344 of 2018
G.K.ILANTHIRAIYAN, J.
lok
Crl.A.No.344 of 2018
02.11.2022
https://www.mhc.tn.gov.in/judis
