Rajasekar vs T.Michael Augustin
2023 Latest Caselaw 3768 Mad

                                                                                     Crl.A(MD)No.44 of 2011



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                       Date : 05.04.2023

                                                           CORAM:

                           THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                  Crl.A.(MD)No.44 of 2011

                     Rajasekar                                         ... Appellant/Complainant

                                                                 vs.

                     T.Michael Augustin                                  ...Respondent/Accused

                     PRAYER : This Criminal Appeal has been filed under Section 378
                     Cr.P.C., as against the Judgment passed by the learned Judicial
                     Magistrate Court, Nanguneri on 03.07.2008 in C.C.No.129 of 2007,
                     thereby acquitted the respondent/accused giving benefit of doubt for an
                     offence under Section 138 of N.I Act.


                                              For Appellant     : Mr.S.Mani

                                              For Respondent : Mr.G.Prabhu Rajadurai

                                                         JUDGMENT

This Criminal Appeal is filed against the order of acquittal passed

in C.C.No.129 of 2007, on the file of the learned Judicial Magistrate

Court, Nanguneri, dated 03.07.2008.

https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.44 of 2011

2.The appellant is the complainant and the respondent is the

accused. The appellant had lodged a complaint alleging that the

respondent borrowed a sum of Rs.7,00,000/- in the year 2005. When the

appellant asked to repay the said amount, the respondent had issued

cheque for the said sum on 28.02.2007. The said cheque was presented

for collection and the same was returned as dishonored for the reason

that “insufficient funds”. After causing statutory notice, he lodged a

complaint.

3.In order to prove his case, he examined himself as P.W.1 and

exhibited 3 documents as Ex.P.1 to Ex.P.3. On the side of the respondent,

he examined himself as D.W.1 and exhibited 21 documents as Ex.D.1 to

Ex.D.21.

4.On perusal of the oral and documentary evidence, the trial Court

found that the respondent is not guilty and acquitted him for the offence

under Section 138 of N.I Act. Challenging the said order of acquittal, the

appellant has filed the present appeal.

5.The appellant has raised grounds that the trial Court had

acquitted the respondent only for the reason that the appellant and the https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.44 of 2011

respondent had no acquaintance and the appellant has also failed to prove

his friendship with the respondent. The appellant has also failed to get

any document in order to secure the loan of Rs.7,00,000/-. Therefore, no

prudent man will lend such a huge amount as a loan without any security.

The Court below also noted that the appellant had failed to prove his case

and the respondent rebutted the presumption arising out of Section 139

of N.I Act.

6.Heard the learned counsel appearing on either side and perused

the materials available on record.

7.On perusal of the records revealed that the appellant lodged a

complaint alleging that the respondent borrowed a sum of Rs.7,00,000/-

as loan and in order to repay the same, he had issued a cheque. The said

cheque was presented for collection and the same was returned as

dishonored for the reason that “funds insufficient”. After receipt of the

statutory notice, the respondent issued a reply notice, which was marked

as Ex.D.4. It revealed that the respondent categorically denied the

borrowal from the appellant. In fact, he did not even know about the

appellant. Since he is a stranger to him, he had not insisted for borrowal

of such huge amount. Therefore, the respondent admitted his signature https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.44 of 2011

and also issuance of cheque. Therefore, Ex.D.9 was never issued by him

for any legally enforceable debt in favour of the appellant herein. Further,

it is the case of the respondent that he had money transaction with one

Peter to whom, he had given unfilled cheque, which was used by him

through the appellant herein. Even then, the appellant had failed to

examine the said Peter in order to disprove the fact that the respondent

created a doubt and the case of the respondent can be highly probable.

The respondent also marked Ex.D.1 to Ex.D.21, which are unfilled stamp

papers stands in the name of the respondent. Therefore, he categorically

rebutted the presumption arising out of Section 139 of N.I Act. That

apart, the appellant stated in the complaint that the respondent borrowed

a sum of Rs.7,00,000/- in the year 2005, whereas, he deposed that the

respondent borrowed a sum of Rs.7,00,000/- in the year 2007. Therefore,

no prudent man would forget the date, month and year of the loan, which

was advanced by him. Therefore, on the whole, this Court finds that the

trial Court rightly acquitted the respondent for the offence under Section

138 of N.I Act and this Court finds no infirmity or illegality in the order

of acquittal passed by the Court below. Hence, the appeal is liable to be

dismissed.

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Crl.A(MD)No.44 of 2011

8.Accordingly, the Criminal Appeal stands dismissed.

05.04.2023

sji

NCC : Yes/No Index: Yes/No Internet: Yes/No To

1. The Judicial Magistrate Court, Nanguneri.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.44 of 2011

G.K.ILANTHIRAIYAN , J.

sji

Crl.A.(MD)No.44 of 2011

05.04.2023

https://www.mhc.tn.gov.in/judis