Madras High Court
T.Kalaivanan vs G.Loganathan on 11 April, 2023
Crl.A.No.639 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.04.2023
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.639 of 2016
T.Kalaivanan ... Appellant
Versus
G.Loganathan ... Respondent
Prayer: Criminal Appeal filed under Section 378 of Criminal Procedure Code,
to set aside the judgment, dated 06.04.2015 made in C.C.No.61 of 2012 on the
file of the Court of the learned Judicial Magistrate No.II, Walajapet, Vellore
District acquitting the respondent / accused from the offence committed under
Section 138 of N.I. Act.
For Appellant : Ms.S.Sri Ranjini
for Mr.T.P.Prabakaran
For Respondent : No Appearance
JUDGMENT
This appeal is filed against an order of acquittal. The appellant is
complainant in a private complaint filed under Section 200 of the Code of
Criminal Procedure complaining an offence under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I. Act’).
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Crl.A.No.639 of 2016
2. The case of the complainant is that the accused borrowed a sum of
Rs.4,00,000/- and executed a promissory note agreeing to repay the same with
interest at the rate of 24% per annum on 05.07.2011. On 24.07.2012, in
discharge of the principal along with accrued interest, the accused issued a
cheque for a sum of Rs.5,28,000/- which, upon presentation, returned with an
endorsement 'insufficient funds'. Therefore, statutory notice was given and
thereafter, since the accused failed to discharge the amount due under the
cheque within 15 days period, the complaint was filed.
3. The Trial Court considered the fact that it is the case of the
complainant that the accused executed a promissory note after borrowing a sum
of Rs.4,00,000/- and no such promissory note was produced. Upon specific
cross-examination, the complainant stated that when the accused issued the
cheque, the promissory note was returned back. The Trial Court noticed that
said fact was not mentioned in the complaint and this was the first ground,
which the Trial Court held against the appellant.
4. Secondly, the case of the defence is that upon bouncing of the cheque,
in order to repay the money, Ex.D-2, Power of Attorney, was executed and
through D.W.1, the property was ultimately conveyed to the complainant. The
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Crl.A.No.639 of 2016
sale deed was marked as Ex.D-1. Therefore, when a plausible defence was
made by the accused by producing the defence witness, D.W.1, Suresh and
marking Exs.D-1 and D-2, the Trial Court held that the accused had rebutted
the presumption under Section 139 of the N.I. Act and in the absence of any
further proof of lending of the money, held that the accused is entitled for the
benefit of doubt. Aggrieved by the same, the present appeal is filed.
5. Heard Ms.S.Sri Ranjini, learned Counsel appearing on behalf of the
appellant. The learned Counsel for the appellant submits that when the cheque
has been marked as Ex.P-1 and when the signature in the cheque is admitted
and P.W.1 has categorically deposed before the Court, the presumption under
Sections 118 as well as under 139 of the N.I. Act come to aid of the
complainant and therefore, the Trial Court ought not to have acquitted the
accused. She would further submit that even D.W.1 did not categorically
depose that only in respect of the present cheque amount, Ex.D-1, sale deed
was executed and therefore, the acquittal on the said ground is also
unsustainable.
6. I have considered the submissions made on behalf of the appellant and
perused the material records of the case. It can be seen that it is the specific
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Crl.A.No.639 of 2016
case of the complainant that the money was borrowed upon execution of the
promissory note. As rightly found by the Trial Court, the complainant's version
that he returned the promissory note without taking a copy thereof when the
accused had issued the cheque is unbelievable. Secondly, as rightly found by
the Trial Court, when the defence has marked Ex.D-1 sale deed which clearly
shows that the property was ultimately conveyed to the complainant and when
the said fact has been duly put to the complainant and no proper explanation
has been given in the cross-examination as to how the sale consideration passed
on, the Trial Court's finding granting benefit of doubt to the respondent /
accused cannot be faulted and cannot be said as an implausible view. In an
appeal against acquittal, unless this Court comes to the conclusion that the view
taken by the Trial Court is a impossible or perverse view, finding of acquittal
cannot be turned as one of guilt.
7. Under these circumstances, the Criminal Appeal is dismissed as
without any merits.
11.04.2023
Index : yes
Speaking order
Neutral Citation : no
grs
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Crl.A.No.639 of 2016
To
The Judicial Magistrate No.II,
Walajapet,
Vellore District.
D.BHARATHA CHAKRAVARTHY. J.,
grs
Crl.A.No.639 of 2016
https://www.mhc.tn.gov.in/judis
Crl.A.No.639 of 2016
11.04.2023
https://www.mhc.tn.gov.in/judis
