Senthilvel Murugan vs Andi
2023 Latest Caselaw 3469 Mad

                                                                                   Crl.A.(MD)No.341 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.341 of 2013


                     Senthilvel Murugan                                    ... Appellant/Complainant


                                                                vs.

                     Andi                                                  ... Respondent/Accused


                     PRAYER : This Criminal Appeal has been filed under Section 378(4) of
                     Cr.P.C., to call for the records relating to the judgment dated 04.10.2013
                     made in S.T.C.No.3592 of 2011 on the file of the learned Judicial
                     Magistrate Court, Rajapalayam and set aside the same as illegal.


                                       For Appellant      : Mr.J.Karthikeyan

                                       For Respondent     : Mr.T.Pon Ram Kumar


                                                           JUDGMENT

This Criminal Appeal is directed against the order passed in

S.T.C.No.3592 of 2011, on the file of the learned Judicial Magistrate

Court, Rajapalayam, dated 04.10.2013.

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

Crl.A.(MD)No.341 of 2013

2.The appellant is the complainant and the respondent is the

accused. The complaint was lodged by the appellant for the offence

under Section 138 of N.I Act.

3.The case of the appellant is that the respondent borrowed a sum

of Rs.5,00,000/- on 03.02.2007 and also agreed to pay interest at 1% p.a.,

for Rs.100/-. Thereafter, he paid interest till December 2007 and in order

to repay the principal amount, he issued a cheque for a sum of

Rs.5,00,000/-. When the said cheque was presented for collection, the

same was dishonored for the reason “insufficient funds”. After causing

statutory notice, the appellant filed a complaint under Section 138 of N.I

Act.

4.On the side of the appellant, he had examined P.W.1 and P.W.2

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

accused, no one was examined and exhibited 3 documents as Ex.D.1 to

Ex.D.3.

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

found the respondent/accused not guilty and acquitted him for the

offence under Section 138 of N.I. Act. Hence the present appeal. https://www.mhc.tn.gov.in/judis

Crl.A.(MD)No.341 of 2013

6.The learned counsel for the appellant would submit that he had

no instructions from the appellant. The appeal is of the year 2013 and as

such, this Court is entitled to pass orders on merits on going through the

records. The appellant raised grounds that the respondent after receipt of

statutory notice, has failed to reply and as such, the respondent has failed

to rebut the presumption as contemplated under Section 139 of N.I. Act.

That apart, the respondent has categorically admitted the signature and

issuance of cheque and as such, the appellant discharged his initial

burden in order to prove the offence under Section 138 of N.I Act.

7.According to the appellant, the respondent borrowed a sum of

Rs.5,00,000/- and in order to repay the said amount, he issued a cheque

which was marked as Ex.P.1. It was not honoured and as such, the

appellant caused statutory notice, which was marked as Ex.P.4 and Ex.P.

5. The specific case of the respondent is that the appellant had no source

of income to lend such a huge amount of Rs.5,00,000/-. It is settled law

that when the person while lending loan, that too, without receiving any

documents as security, he has to prove his financial capacity in order to

lend huge amount as loan. In the case on hand, admittedly, the appellant

while allegedly lending loan to the tune of Rs.5,00,000/-, he did not

receive any documents from the respondent as security. That apart, the https://www.mhc.tn.gov.in/judis

Crl.A.(MD)No.341 of 2013

case of the respondent is that he is one of the subscribers of the chit

conducted by the appellant herein. While conducting the chit, the alleged

cheque was given as security. After repayment of entire chit amount, the

cheque was misused by the appellant. Admittedly, the appellant as well as

the respondent are working as Teachers and also close relatives.

Therefore, the respondent categorically rebutted the presumption and the

burden of proof shifted on the shoulder of the appellant. However, the

appellant has failed to prove his case and as such, the Court below has

rightly acquitted the respondent for the offence under Section 138 of N.I.

Act and 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 To

1.The Judicial Magistrate Court, Rajapalayam.

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

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

Crl.A.(MD)No.341 of 2013

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

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

Crl.A.(MD)No.341 of 2013

G.K.ILANTHIRAIYAN , J.

sji

Crl.A.(MD)No.341 of 2013

30.03.2023

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