Madras High Court
K.Sivakumar vs M.Subramaniam on 6 August, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
CRLA.No.490 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.08.2024
CORAM :
MR. JUSTICE N.SESHASAYEE
Crl.A.No.490 of 2013
K.Sivakumar ... Petitioner
Vs.
M.Subramaniam ... Respondent
Prayer: Criminal Appeal is filed under Section 378 Cr.P.C. against the
Judgement dated 15.10.2012 made in S.T.C.No.1287 of 2010 on the file
of the learned Judicial Magistrate No.II, Pollachi, acquitting the accused
under Section 255(1) Cr.P.C. for the offence under Section 138 of
Negotiable Instruments Act, 1881.
For Petitioner : Mr.M.N.Balakrishnan
For Respondent : Mr.S.Vignesh Kumar
JUDGMENT
This appeal is preferred by the complainant in S.T.C.No.1287 of 2010,
on the file of the learned Judicial Magistrate No.II, Pollachi, challenging
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the decision of the learned Magistrate in acquitting the respondent on a
complaint filed under Section 138 of the Negotiable Instruments Act,
1881.
2.The case of the complainant is that on 22.05.2010 the respondent had
borrowed a sum of Rs.70,000/- and handed over a post dated cheque
drawn on Canara Bank, Zamin-Uthukuli Branch, dated 22.06.2010 for
the aforesaid loan amount of Rs.70,000/-. When the cheque was
presented for encashment, it was dishonoured vide Memo of dishonour
dated 30.06.2010 on the ground that the account is lying dormant.
Without wasting time, the appellant issued Ex.P3 statutory notice dated
06.07.2010 on the respondent, requiring the latter to pay him the sum
noted in the cheque. The respondent responded to this notice with his
reply dated 26.07.2010 vide Ex.P5, wherein he has pleaded that he had
never borrowed any sum from the appellant. Indeed, he has even
required the appellant to share a copy of the cheque in question.
3.Eventually, the appellant preferred a complaint before the learned
Magistrate, which the learned Magistrate took cognizance of and
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proceeded to inquire the matter. During trial the complainant examined
himself as PW1 and has marked Ex.P1 to Ex.P5, of which Ex.P1 is a
cheque in question. The other material documents are Ex.P3 and P5.
4.Turning to the respondent, he examined DW1, an independent witness,
through whom he marked Ex.D1. On appreciating the evidence before
her, the learned Magistrate opted not to believe the version of the
appellant. The line of reasoning of the learned Magistrate is that the
respondent is able to create a probability with the proof of his defence
that he had borrowed a sum of Rs.5,000/- as a hand loan from his
colleague working in State Transport Corporation, for securing the
repayment of which he had handed over a blank cheque and the said
Chandrasekar had set up his brother, the complainant / appellant herein
and had filed the complaint. The learned Magistrate, accordingly drew an
inference that it would be improbable for the appellant to advance a loan
to an utter stranger and granted benefit of doubt to the respondent and
acquitted him. This judgment is now under challenge.
5.The respondent at no time denied his signature in the cheque which
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necessarily means that the presumption under Section 139 of the
Negotiable Instruments Act r/w Section 118 (a) would come to the aid of
the appellant and that the burden is entirely on the respondent to create
the right kind of probability to improbabilise the case of the appellant. To
state that merely because two persons are strangers does not ipso facto
imply that there cannot be a loan transaction. The very admission of the
respondent makes it clear that the appellant's brother Chandrasekar was
his colleague. Therefore, to say that both the parties herein are utter
strangers might not be conceivable. Therefore, the learned Magistrate
was in egregious error in creating a probability in favour of the defence
case where there is none.
6.There is no representation for the respondent. On a perusal of the
records, this Court finds that there is a far greater clinching circumstance
which will go to the aid of the respondent which the learned Magistrate
has missed. During the cross examination of PW1 as to when exactly the
loan was advanced, the appellant had replied that the loan was advanced
at 11.30 a.m. on 22.05.2010. Now the respondent was working as a
conductor in the State Transport Corporation and through DW1, the time
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keeper of the State Transport Corporation and with the aid of Ex.D1 was
able to establish that at 11.30 a.m. on 22.05.2010, he was on duty.
Literally the respondent had pleaded alibi and was also able to establish
it. This creates a strong probability far greater than something which the
learned Magistrate has weighed to create a dent in the case of the
appellant. The appellant is not able to come up with any real explanation
for the same.
7.This Court does not find any merit in this appeal and the same is
dismissed, not on the ground on which the learned Magistrate has
dismissed the complaint, but on the ground of respondent establishing the
alibi to disprove the case of the complainant.
06.08.2024
kas
Index : yes / no
Neutral Citation
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N.SESHASAYEE, J.
kas
To
1.The Judicial Magistrate No.II
Pollachi
06.08.2024
https://www.mhc.tn.gov.in/judis
