R.Muruganantham vs S.Sakthivel
2023 Latest Caselaw 3456 Mad

                                                                                   Crl.A.(MD)No.293 of 2013



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                       Date : 30.03.2023

                                                          CORAM:

                           THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.A(MD)No.293 of 2013

                     R.Muruganantham                                   ... Appellant/Complainant

                                                                vs.

                     S.Sakthivel                                           ... Respondent/Accused

                     PRAYER : This Criminal Appeal has been filed under Section 378 of
                     Cr.P.C., to call for the records pertaining to the Judgment in C.C.No.320
                     of 2011 on the file of the Fast Track Court at Magisterial Level,
                     Thanjavur, dated 12.08.2013 and set aside the same.


                                       For Appellant      : Mr.T.A.Ebenezer

                                       For Respondent     : Mr.C.Arul Vadivel @ Sekar
                                                            Senior Counsel
                                                            for Mr.J.Selvam


                                                           JUDGMENT

This Criminal Appeal is directed against the order passed in

C.C.No.320 of 2011, on the file of the Fast Track Court at Magisterial

Level, Thanjavur, dated 12.08.2013 and thereby, acquitting the

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

Crl.A.(MD)No.293 of 2013

respondent for the offence under Section 138 of the N.I Act.

2.The appellant/complainant has lodged a complaint as against the

respondent/accused for the offence under Section 138 of the N.I Act.

3.The crux of the complaint is that the respondent borrowed a sum

of Rs.5,00,000/- from the appellant as hand loan to meet out his family

expenses. He also promised to repay the same within a period of one

month. However, he did not repay the same and as such, after several

demands, the respondent issued a cheque for a sum of Rs.5,00,000/-.

When the cheque was presented for collection, the same was returned as

dishonored for the reason “funds insufficient”. After causing statutory

notice, he lodged a complaint.

4.On the side of the appellant, he had examined himself as P.W.1

and exhibited 7 documents as Ex.P.1 to Ex.P.7. On the side of the

respondent, he had examined himself as D.W.1 and exhibited 1 document

as Ex.R.1.

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

found the respondent not guilty and acquitted him for the offence under https://www.mhc.tn.gov.in/judis

Crl.A.(MD)No.293 of 2013

Section 138 of the N.I. Act. Aggrieved by the same, the present appeal

has been filed.

6.The learned counsel for the appellant submitted that the

respondent admitted his signature and issued a cheque and it was marked

as Ex.P.1. Therefore, there is a presumption that Ex.P.1 was issued for

legally enforceable debt. The respondent also failed to rebut the

presumption in accordance with law. The evidence of the respondent and

the documents which are produced by the respondent never created any

reasonable doubt over the existence of legally enforceable debt.

Unfortunately, the trial Court, without considering the above, acquitted

the respondent. Hence, he prayed for allowing this appeal.

7.A perusal of the records revealed that though the respondent

admitted Ex.P.1, the specific case of the respondent is that the appellant

categorically admitted that an Omni Van was purchased in his name from

Pillai and it was borrowed by availing loan from Mahendra Finance. He

lost his original key. It is also corroborated from the evidence of P.W.1.

Though the said Van was purchased in the name of the appellant, the

respondent had issued 20 cheque leaves including Ex.P.1 and Ex.P.3

towards payment of EMI for the said car loan. Therefore, those https://www.mhc.tn.gov.in/judis

Crl.A.(MD)No.293 of 2013

documents were issued for EMI purpose and not for any legally

enforceable debt in favour of the appellant herein. That part, after receipt

of the statutory notice, the respondent issued a reply notice, which was

marked as Ex.R.1. Therefore, the respondent categorically rebutted the

presumption arising out of the provision under Section 138 of thje N.I.

Act. Hence, the appellant has failed to prove his case. The respondent

proved that the cheques were not issued for any legally enforceable debt

or liability, by examining himself and marking Ex.R.1. He shifted the

burden on the appellant to prove his case. In fact, the respondent stopped

the payment and as such, the Court below has rightly dismissed the

complaint for the reason that the appellant failed to prove that Ex.P.1 to

Ex.P.3 were not supported by any consideration. Hence, this Court finds

no infirmity or illegality in the order passed by the Court below and the

appeal is liable to be dismissed. Accordingly, it is dismissed.

30.03.2023

sji

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

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

Crl.A.(MD)No.293 of 2013

To

1.The Fast Track Court at Magisterial Level, Thanjavur.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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

Crl.A.(MD)No.293 of 2013

G.K.ILANTHIRAIYAN , J.

sji

Crl.A.(MD)No.293 of 2013

30.03.2023

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