Madras High Court
Sarfoji vs G.Nithyanandam on 26 April, 2023
CRL.A.(MD).No.284 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.04.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.A.(MD).No.284 of 2014
Sarfoji ... Appellant/Complainant
Vs.
G.Nithyanandam ... Respondent/Accused
PRAYER : Criminal Appeal filed under Section 378 of Cr.P.C to set
aside the Judgment and acquittal order passed by the learned
District Munsif cum Judicial Magistrate, Papanasam, dated
24.07.2013 in S.T.C.No.908 of 2012 and convict the accused for the
offence under Section 138 of the Negotiable Instruments Act.
For Appellant : Mr.M.Karunanithi
For Respondent : Mr.Ilayaraja
1/6
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CRL.A.(MD).No.284 of 2014
JUDGMENT
This appeal has been preferred as against the order of
acquittal passed in S.T.C.No.908 of 2012 on the file of the learned
District Munsif cum Judicial Magistrate, Papanasam, dated
24.07.2013, 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 was
introduced by his friend, one Mariappan. While being so, on
06.09.2011, the respondent borrowed a sum of Rs.3,00,000/- in
order to develop his business. He also assured to return the same
within a period of one month. In order to repay the same, the
respondent issued a cheque for the said sum and the same was
presented for collection. However, it was returned for the reason
'funds insufficient'. After causing statutory notice, the appellant
lodged the complaint.
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CRL.A.(MD).No.284 of 2014
4.On the side of the appellant, he examined P.W.1 and
P.W.2 and marked Exs.P.1 to P.4 and on the side of the respondent,
he himself was examined D.W.1 and marked Ex.D.1.
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 and dismissed the complaint. Aggrieved by the same, the
present Appeal.
6.The learned counsel appearing for the appellant would
submit that the respondent admitted his signature and also the
issuance of cheque. Therefore, the appellant discharged his initial
burden as contemplated under Section 138 of the Negotiable
Instruments Act. At the same time, the respondent also failed to
rebut the presumption under Sections 118 and 139 of the
Negotiable Instruments Act. Though the appellant failed to mention
the date of borrowal and place of borrowal, when the respondent
admitted the issuance of cheque, he is liable to be punished for the
offence under Section 138 of the Negotiable Instruments Act.
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CRL.A.(MD).No.284 of 2014
7.Per contra, the learned counsel appearing for the
respondent would submit that the cheque was not issued for any
legally enforceable debt. In fact, the said Mariappan is not his
friend, who was examined as P.W.2. One Marimuthu along with
Subbaraj were doing timber business. Due to misunderstanding
between them, they separated in the month of September 2010.
The respondent borrowed a sum of Rs.50,000/- and for security
purposes, he issued the cheque. It was misused by the appellant
and initiated the proceedings under Section 138 of the Negotiable
Instruments Act. The respondent categorically rebutted the
presumption and as such, the trial Court rightly dismissed the
complaint.
8.Heard the learned counsel appearing on either side
and perused the materials available on record.
9.On perusal of records revealed that Ex.P.1 was
presented for six times. Further, the appellant was introduced to the
respondent through his friend one Mariappan, who was examined as
P.W.2. According to the respondent, he had a business of timber
along with Marimuthu and Subburaj. Therefore, the said Marimuthu
was not examined by the appellant and he had examined only
Mariappan as P.W.2. The respondent had absolutely no acquaintance
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CRL.A.(MD).No.284 of 2014
with P.W.1 and P.W.2. That apart, when unknown person that too
introduced by P.W.2 while borrowing of huge amount to the tune of
Rs.3,00,000/-, the prudent person would receive the other
document as security. The appellant accepted the cheque and no
other documents were produced in order to prove the borrowal and
the cheque was issued only for legally enforceable debt. Whereas,
the respondent produced Ex.D.1 and it revealed that he had a
business transaction with Marimuthu and Subburaj. Therefore, the
respondent categorically rebutted the presumption and the
appellant 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. Hence, the Criminal Appeal is dismissed.
26.04.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
To
The District Munsif cum Judicial Magistrate,
Papanasam.
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.284 of 2014
G.K.ILANTHIRAIYAN, J.
ps
CRL.A.(MD).No.284 of 2014
26.04.2023
https://www.mhc.tn.gov.in/judis
