A.Kulanthaivelu vs Somasundari
2023 Latest Caselaw 15725 Mad

Madras High Court

A.Kulanthaivelu vs Somasundari on 6 December, 2023

Author: M.Nirmal Kumar

Bench: M.Nirmal Kumar

                                                                   Crl.O.P.No.26414 of 2023 in Crl.A.SR.No.55450 of 2023


                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED : 06.12.2023

                                                                CORAM

                                    THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                                   Crl.O.P.No.26414 of 2023 in
                                                   Crl.A.SR.No.55450 of 2023

                     A.Kulanthaivelu                                                        ... Petitioner
                                                                 Vs.
                     Somasundari                                                            ... Respondent

                     Prayer: Criminal Original Petition filed under Section 482 of Criminal
                     Procedure Code, to grant Special Leave to file the appeal as against the order
                     of acquittal passed in C.C.No.920 of 2017, dated 11.09.2023 on the file of
                     the Metropolitan Magistrate, V Fast Track Court, Saidapet, Chennai.

                                        For Petitioner      :     Mr.A.Kumanaraja

                                                             ORDER

The petitioner as a complainant filed a private complaint against the

respondent for offence under Section 138 of the Negotiable Instruments Act,

1881 in C.C.No.920 of 2017 before the learned Metropolitan Magistrate,

Fast Track Court-V, Saidapet, Chennai (Trial Court). The Trial Court, by

judgment, dated 11.09.2023 dismissed the complaint against which the

present Criminal Original Petition for grating leave.

2.The case of the petitioner is that the respondent who was working as

https://www.mhc.tn.gov.in/judis Crl.O.P.No.26414 of 2023 in Crl.A.SR.No.55450 of 2023

a Nurse in Thoothukudi district took loan for a sum of Rs.75,000/- from the

petitioner during the month of April 2015 for family expense. In discharge

of the same, the respondent issued three cheques each for Rs.25,000/-, dated

04.10.2016 and the same were presented, got dishonored. Following the

statutory provisions, the petitioner filed the above said complaint, during

trial, he examined himself as PW1 and marked 12 documents as Exs.P1 to

P12. After completion of trial, the trial Court dismissed the complaint, by

judgment, dated 11.09.2023 as stated above.

3.The learned counsel for the petitioner submitted that the Trial Court

failed to look into the fact that the respondent not disputed the signature in

the cheques and thereby, the statutory presumption starring against the

respondent under Sections 118 and 139 of the Negotiable Instruments Act,

1881. He further submitted that the respondent did not get into the box and

not given any explanation, only for the reason that there is no mention about

the date of the loan borrowed and when and where the cheques were handed

over, are not stated in the notice as well as in the complaint and proof

affidavit which has been given undue importance by the Trial Court. The

https://www.mhc.tn.gov.in/judis Crl.O.P.No.26414 of 2023 in Crl.A.SR.No.55450 of 2023

Trial Court further gave a finding that the respondent and one Ganesan were

working together in the Government Hospital, Thoothukudi, at that time,

they got acquainted and Rs.75,000/- was taken loan from the said Ganesan

and it was repaid and, thereafter, the said Ganesan met with an accident and

later died, taking advantage of these three cheques, which was not returned

by the said Ganesan, the petitioner who is none other than the brother-in-law

of Ganesan, had misused the same, is not proper. Hence, prays for setting

aside the judgment of the Trial Court.

4.Considering the submissions and on perusal of the materials such as

statutory notice, reply notice, proof affidavit, complaint and cross

examination, it is the specific case of the respondent that the respondent and

Ganesan were working together in the Government Hospital, Thoothukudi

and later, Ganesan died due to accident. The petitioner admits that Ganesan

is his brother-in-law. For a specific question that on whose instruction, the

cheques were presented, the petitioner admits that the cheques were

presented after Ganesan's son met the respondent who asked the cheques to

be presented. He further admits that for 30 years, the petitioner is residing

https://www.mhc.tn.gov.in/judis Crl.O.P.No.26414 of 2023 in Crl.A.SR.No.55450 of 2023

in Chennai. Admittedly, in this case, the respondent is employed in

Thuthookudi as a staff Nurse, had no occasion to meet the petitioner. It is to

be noted that there is no reason given when and on which date the

respondent had approached the petitioner and taken loan amount and

handed the cheques. From the cross examination, it is seen that the

respondent had probablized her defence. The Trial Court considered the

same in paragraphs (f) and (g), gave reasons and dismissed the complaint.

5.In view of the above, this Court finds no reason to interfere with the

judgment of the trial Court, dated 11.09.2023 and the same is hereby

affirmed. Accordingly, this Criminal Original Petition stands dismissed and

Crl.A.SR.No.55450 of 2023 stands rejected.

06.12.2023 Index : Yes/No Speaking Order/Non Speaking Order Neutral Citation: Yes/No

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To

https://www.mhc.tn.gov.in/judis Crl.O.P.No.26414 of 2023 in Crl.A.SR.No.55450 of 2023

The Metropolitan Magistrate, Fast Track Court No.V, Saidapet, Chennai.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.26414 of 2023 in Crl.A.SR.No.55450 of 2023

M.NIRMAL KUMAR, J.

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Crl.O.P.No.26414 of 2023 in

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