Madras High Court
P.Murugesan vs K.A.Vairamuthu on 2 March, 2023
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 02/03/2023
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.A(MD)No.509 of 2023
P.Murugesan : Appellant/
Complainant
Vs.
K.A.Vairamuthu : Respondent/
Accused
Prayer: Criminal Appeal is filed under section
378(3) of the Criminal Procedure Code to call for the
records and set aside the judgment of acquittal passed in
CC No.52 of 2018 on the file of the Judicial Magistrate
No.1, Sivakasi, dated 07/06/2022.
For Appellant : M/s.P.Jessi Jeeva Priya
For Respondent : Mr.S.Surya
JUDGMENT
This Criminal Appeal has been filed seeking to set
aside the judgment of acquittal passed in CC No.52 of
2018 by the Judicial Magistrate No.1, Sivakasi, dated
07/06/2022.
https://www.mhc.tn.gov.in/judis
2.The facts in brief:-
The appellant as complainant filed a private
complaint under section 200 Cr.P.C with the following
allegations:-
The property, which belongs to him was rented out
to the accused on monthly rent basis. The accused
borrowed a sum of Rs.17,00,000/- for his personal
expenses. He did not repay the amount. So he lodged a
complaint with Sivakasi Town Police station.
3.During the course of the enquiry, the accused
admitted that he was liable to pay Rs.12,00,000/- and
also promised to repay the same within a year. So he
issued a post-dated cheque bearing No.390367, on
27/12/2017 and it was presented for payment through the
complainant's banker. That was returned stating that no
sufficient fund is available, on 05/12/2018. After
completing the statutory formalities, he filed a private
complaint praying punishment.
https://www.mhc.tn.gov.in/judis
4.That private complaint was resisted by the
accused stating that no such amount was borrowed by him
from the complainant and he was the tenant under the
complainant from 2008 to 2018. Along with his wife, they
were engaged in two wheeler selling business. One
Murugesan was in out station, one Santha Devi visited his
shop and the above said Santha Devi used to withdraw the
money by issuing the cheque in favour of his wife.
5.On the side of the complainant, 2 witnesses were
examined and 22 documents marked. On the side of the
accused, 2 witness were examined and 7 documents marked.
6.At the conclusion of the trial process, the trial
court found that there was no legally enforceable
liability between the accused and the complainant. That
was established by the accused and the complainant failed
to prove the legally enforceable liability. On that
account, the above said complaint was dismissed, by
which, the accused was acquitted.
7.Against which, this criminal appeal has been
preferred.
https://www.mhc.tn.gov.in/judis
8.Now let us bear in mind the factual circumstances
as well as the background facts of the case.
9.It is not in dispute that the appellant was a
building owner, in which, the accused was one of the
tenants. There were some sort of issues with regard to
the tenancy matter.
10.According to the complainant, in the course of
the above said tenancy, the accused borrowed a sum of Rs.
17,00,000/- from him.
11.Now let us go to the evidence of PW1 in this
aspect. Ex.P1 is the police complaint. As mentioned
above, the accused was a tenant under the complainant. As
stated above, there was dispute between them over payment
of rent, over which, the complainant made a threat to
close the shop. So the accused, on 19/06/2017 sent a
legal notice and also lodged a complaint, on 20/06/2017.
On the date itself, an agreement of undertaking and
tenancy agreement was entered between the parties for 11
months. On 22/06/2017, the complainant lodged a complaint
for the money as well as return of the property and in
https://www.mhc.tn.gov.in/judis
the course of the above said enquiry, on 01/07/2017, the
accused appeared in the police station and promised to
return the cheque, on 04/07/2017. So this sequence of
events shows that over the tenancy issue, a complaint
was given by the complainant and enquiry was undertaken
by the police and during the course of the enquiry, the
above said undertakings were reduced into writing.
12.As pointed out by the trial court, what was the
necessity for the complainant to lodge the complaint
within two days from the date of the above said agreement
of lease and undertaking seeking recovery of money and
restoration of the property.
13.In the above said enquiry, the accused has
undertaken that he will vacate the shop within six months
and the amount of Rs.12,00,000/- will be paid within a
year. The enquiry was concluded, on 27/06/2017.
14.As rightly pointed out by the trial court, when
there is a tenancy issue between the complainant and the
accused, they ought to have taken proper legal steps for
vindicating his grievance or relief, as the case may be.
https://www.mhc.tn.gov.in/judis
Instead of taking the recourse through civil process, the
complainant has adopted dubious method of giving a
complaint to the police. The police ought not to have
interfered in the dispute at all. In stead of that, they
entertained the complaint, made enquiry and in the
course of enquiry, a compromise alleged to have been
reached, wherein the disputed cheque has been obtained.
This clearly shows that it is nothing, but an illegal
act, which was undertaken not only by the police, but
also by the complainant to recover the money as well as
the restoration of the property. So this itself be
illegal and any cheque that has been issued in favour of
the complainant by the accused during the course of the
police enquiry is not valid under law. It can be simply
construed as a cheque, which was obtained under threat
for lodging or filing a criminal case. So this itself
vitiates the entire process. This is nothing, but a void
transaction, which was undertaken by force under threat
by the prosecution. So no liability will accrue to any of
the parties, over the above said void agreement or
contract as the case may be.
https://www.mhc.tn.gov.in/judis
15.Not only that as pointed out by the trial court
on the date of the issue of the cheque during the course
of the police enquiry, but also the debt itself has
become time barred. There was no fresh promise by the
accused to repay or pay the amount, which was already
barred by limitation. So obtaining the cheque under the
threat of prosecution will not give any fresh cause of
action for recovering the debt or arrears of rent. The
whole exercise, that was undertaken by the complainant is
totally illegal and void, which cannot be enforced by any
criminal prosecution. On that score, the entire
prosecution is liable to be thrown out of the court and
it has been rightly thrown out by the trial court. So
absolutely, I find no reason to interfere into the order
of acquittal that was passed by the trial court. On that
sold ground, this criminal appeal is liable to be
dismissed and accordingly, it is dismissed, confirming
the judgment of acquittal passed by the trial court.
16.In the result, this criminal appeal is
dismissed.
02/03/2023
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
To,
The Judicial Magistrate, No.1,
Sivakasi.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
Crl.A(MD)No.509 of 2022
02.03.2023
https://www.mhc.tn.gov.in/judis
