Madras High Court
Mahavir Prasad Rathi vs R.Elayakumar on 28 November, 2023
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.24075 of 2023 in Crl.A.SR.No.51900 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.24075 of 2023 in
Crl.A.SR.No.51900 of 2023
Mahavir Prasad Rathi ... Petitioner
Vs.
R.Elayakumar ... Respondent
Prayer: Criminal Original Petition filed under Section 378(4) of Criminal
Procedure Code, to grant special leave to the petitioner to file the above
appeal before this Court against the judgment against 16.08.2023 passed in
S.T.C.No.656/2019 by the Judicial Magistrate (Fast Track) Court No.I,
Erode.
For Petitioner : Mr.M.Karthik
ORDER
The petitioner as a complainant filed a private complaint under
Section 138 of the Negotiable Instruments Act, 1881 against the respondent
before the learned Judicial Magistrate, Fast Track Court No.I, Erode (Trial
Court) in S.T.C.No.656 of 2019. The Trial Court, by judgment, dated
16.08.2023 dismissed the complaint acquitting the respondent, against
which, the present leave petition and Criminal Appeal.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24075 of 2023 in Crl.A.SR.No.51900 of 2023
2.The case of the petitioner is that on 07.06.2019, one Sakthivel/PW2
borrowed a sum of Rs.1,00,256/- from the petitioner promising to repay the
same with interest at the rate of 18% per annum. In discharge of the said
liability, PW2 made an endorsement and discounted two cheques which
were issued by the respondent in favour of PW2. These cheques were
initially issued by Sakthivel to discharge his liability. There have been a
valid endorsement on the backside of the said cheques by the payee in
favour of the petitioner who came into lawful possession of the said cheques.
Thereafter, the petitioner had become the holder in due course of the above
cheques. When the petitioner presented the cheques with the bank, the same
was returned for the reason that 'Funds Insufficient'. Following the statutory
provisions, the complaint has been filed. During trial, the petitioner
examined himself as PW1 and Sakthivel examined as PW2 and marked
Exs.P1 to P12. On the side of the defence/respondent, no witness examined
and no document marked.
3.The learned counsel for the petitioner submitted that the petitioner
purchased the cheques from the said Sakthivel/PW2 for consideration and he
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24075 of 2023 in Crl.A.SR.No.51900 of 2023
also made necessary endorsement, thereafter, the petitioner had become
holder in due course with proper endorsement and entitled for the cheque
amount to be collected/recovered from the respondent. He further submitted
that Exs.P1 & P2 are the cheques involved in the case which had been
returned for 'Funds Insufficient'. The defence taken by the respondent is that
he does not know the petitioner, further, he admits that PW2 for supply of
Gada Piece cloth, received 15 cheques from the respondent as security. The
petitioner had become holder in due course of the said two cheques is not in
dispute. But, it is to be seen that whether Section 9 of the Act had been
properly followed. In this case, the date on which the petitioner had become
holder of the cheques in due course, whether the amount has been received
and whether the endorsement has been properly made is a question of fact
through the same is not available in the statutory notice, complaint and
sworn statement. Thereafter, an explanation given informing that the
cheques, dated 09.07.2019 were purchased by the petitioner on 07.06.2019,
hence, it is a valid purchase.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24075 of 2023 in Crl.A.SR.No.51900 of 2023
4.From the submissions and on perusal of documents, it is seen that
the petitioner/PW1 in his evidence admits that he is not aware about the
transaction between PW2 and the respondent and what was the liability of
the respondent, whether it is clear from any doubt, nothing is known to
petitioner. When the third condition is that the holder in due course should
have no sufficient cause to believe that any defect existed in the title of the
person from whom he was derived this title. Further, the endorsee becomes
a holder in due course for consideration and he can become an endorse
before the amount mentioned in the promissory notice became payable. In
this case, there is no evidence in the endorsement or in any of the documents
expect for the oral explanation at a later point of time.
5.The learned counsel explanation that the endorsement seal available
in Exs.P1 & P2, affixed by Sakthivel/PW2. This is highly improbable,
deface normal conduct. When the specific defence of the respondent is that
the blank cheques were given during the business between the respondent
and Sakthivel, in such circumstances the petitioner ought to have got
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24075 of 2023 in Crl.A.SR.No.51900 of 2023
clarified and confirmed that there is no doubt in the title. Further, PW1
admission is that he is in the textile business and not in the money lending
business. The said Sakthivel who examined as PW2 states about the receipt
of the cheques from the respondent and he made endorsement in favour of
the petitioner. PW2 further submits that he is only acting as a commission
agent and the goods supplied to the respondent is not that of him. The Trial
Court considering all these aspects and finding that Section 9 of the Act not
followed and complied with, dismissed the complaint.
6.This Court on the evidence and materials and also the submissions,
finds that there is no reason to interfere with the judgment of the trial Court.
7.In the result, this Criminal Original Petition stands dismissed and
Crl.A.SR.No.51900 of 2023 is rejected.
28.11.2023
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
vv2
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.24075 of 2023 in Crl.A.SR.No.51900 of 2023
M.NIRMAL KUMAR, J.
vv2
To
The Judicial Magistrate (Fast Track) Court No.I,
Erode.
Crl.O.P.No.24075 of 2023 in
28.11.2023
https://www.mhc.tn.gov.in/judis
