Nikilesan vs Muthumalai
2023 Latest Caselaw 4820 Mad

                                                                        CRL.A.(MD).No.51 of 2015


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 26.04.2023

                                                    CORAM

                              THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                          CRL.A.(MD).No.51 of 2015

                     Nikilesan                                  ... Appellant/Complainant


                                                    Vs.


                     Muthumalai                                ... Respondent/Accused



                     PRAYER : Criminal Appeal filed under Section 378 of Cr.P.C to call for
                     the records in C.C.No.579 of 2012 on the file of the learned Judicial
                     Magistrate, Fast Track Court / Magisterial Level, Thoothukudi,
                     Thoothukudi District and set aside the Judgment, dated 10.07.2014
                     and punish the accused in accordance with law.


                                   For Appellant          : Mr.N.Subramani


                                   For Respondent         : No appearance




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https://www.mhc.tn.gov.in/judis
                                                                                   CRL.A.(MD).No.51 of 2015


                                                       JUDGMENT

This appeal has been preferred as against the order of

acquittal passed in C.C.No.579 of 2012 on the file of the learned

Judicial Magistrate, Fast Track Court / Magisterial Level,

Thoothukudi, Thoothukudi District, dated 10.07.2014 thereby

dismissing the complaint and acquitted the respondent for the

offence punishable under Section 138 of the Negotiable Instruments

Act.

2. The appellant is the complainant and the respondent

is the accused.

3.The crux of the complaint is that the respondent

borrowed a sum of Rs.31,00,000/- for his urgent and business

needs on 29.05.2009. He also agreed to pay interest at the rate of

12% per annum. He failed to pay any interest and in order to repay

the said amount, after waiving some interest, he issued a cheque

for a sum of Rs.40,00,000/- and it was presented for collection and

the same was returned dishonoured for the reason “funds

insufficient”. After causing statutory notice, the appellant filed the

complaint for the offence under Section 138 of the Negotiable

Instruments Act.

https://www.mhc.tn.gov.in/judis CRL.A.(MD).No.51 of 2015

4.On the side of the appellant, he himself was examined

as P.W.1 and marked Exs.P.1 to P.5 and on the side of the

respondent, he had examined D.W.1 and marked Ex.D.1 to Ex.D.3.

5.On perusal of the oral and documentary evidence, the

trial Court found the respondent not guilty and acquitted him for the

offence punishable under Section 138 of the Negotiable Instruments

Act. Aggrieved by the same, the present Appeal.

6.The appellant raised the ground that the respondent

admitted his signature and issuance of cheque. Therefore, the

appellant discharged his initial burden and as such, the trial Court

ought not to have acquitted the respondent herein. The respondent

also failed to rebut the presumption by the probable defence.

Though so many contentions were raised by the respondent in order

to substantiate the same, the respondent failed to produce any

document.

7.On perusal of records revealed that the appellant

accepted the cheque which was marked as Ex.P.1, but failed to

produce any document to show that the respondent borrowed such

a huge sum of Rs.31,00,000/- as a loan. It is also seen that, the

https://www.mhc.tn.gov.in/judis CRL.A.(MD).No.51 of 2015

appellant simply stated that the respondent is well known to him.

Even though the respondent is well known to him, no prudent man

would lend such a huge money, namely Rs.31,00,000/-, without any

security document. Therefore, the appellant failed to prove that the

cheque was issued for any legally enforceable debt. There is

absolutely no legally enforceable debt existing between the

respondent and the appellant. When there is no evidence for the

passing of consideration for the execution of the cheque mere

admission of signature in the cheque does not prove legally

enforceable debt. That apart, the debt itself is a time barred one.

The respondent had executed a power of attorney on 10.12.2008 in

favour of the wife of the appellant herein. On the strength of the

power of attorney, the appellant had executed a mortgage deed in

favour of his wife, which was converted to a sale deed in his wife's

favour. Therefore, the alleged debt, dated 10.12.2008 is barred.

Ex.P.1 was issued on 04.03.2012. Therefore, the cheque was not

issued for any legally enforceable debt.

8.It is settled law that the complainant should prove

that the dishonoured cheque was issued for discharging existing

liability. When the complainant has failed to prove the due execution

of cheque and the legally enforceable liability on the part of the

accused, the accused is entitled for acquittal.

https://www.mhc.tn.gov.in/judis CRL.A.(MD).No.51 of 2015

9.In the case on hand, the respondent categorically

rebutted the evidence and as such, the burden once again shifted

on the shoulder of the appellant to prove the charge beyond

reasonable doubt. The appellant also failed to prove his case beyond

any doubt. Therefore, the trial Court rightly dismissed the complaint

and acquitted the respondent and this Court finds no infirmity or

illegality in the order passed by the Court below. Accordingly, the

Criminal Appeal is dismissed.

                                                                     26.04.2023

                     NCC          : Yes/No
                     Index        : Yes/No
                     Internet     : Yes
                     ps



                     To

The Judicial Magistrate, Fast Track Court / Magisterial Level, Thoothukudi, Thoothukudi District.

https://www.mhc.tn.gov.in/judis CRL.A.(MD).No.51 of 2015

G.K.ILANTHIRAIYAN, J.

ps

CRL.A.(MD).No.51 of 2015

26.04.2023

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