Madras High Court
Gopi Swaminathan vs M.Arumugam on 4 June, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.06.2024
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In
Crl.A.SR.Nos.33115 and 33117 of 2023
Gopi Swaminathan ... Petitioner in both Crl.O.Ps.
Vs.
M.Arumugam ... Respondent in both Crl.O.Ps.
Common Prayer:
Criminal Original Petitions filed under Section 378(4) of
Criminal Procedure Code, seeking to grant special leave to file
appeals as against the order of acquittal judgment passed in
C.C.Nos.1511 and 1512 of 2018 respectively, dated 17.05.2023 on
the file of III Fast Track Metropolitan Magistrate Court at Saidapet,
Chennai.
For Petitioner : Mr.K.Thenrajan
COMMON ORDER
The criminal original petitions have been filed seeking to grant
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
leave to file appeals against the order dated 17.05.2023 passed in
C.C.Nos.1511 and 1512 of 2018 respectively, by the III Fast Track
Metropolitan Magistrate Court at Saidapet, Chennai.
2.Since the issue involved in these petitions are one and the
same, they are heard together and disposed of by way of a common
order. The petitioner is the complainant in C.C.Nos.1511 and 1512 of
2018 respectively, on the file of III Fast Track Metropolitan Magistrate
Court at Saidapet, Chennai and he filed complaints under Section 138
of the Negotiable Instruments Act as against the respondent. After
adjudication, the accused/ respondent was found not guilty for the
offence under Section 138 of the Negotiable Instruments Act and he
was acquitted under Section 255 (1) of Cr.P.C. and was set at liberty.
Aggrieved by the same, the petitioner has filed these petitions
seeking leave to file appeals.
3.The learned counsel appearing for the petitioner submitted
that the petitioner is doing cable lining and transport contract
business and through common friends in the business circle, the
respondent was introduced to the petitioner. During April, 2017, the
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
respondent approached the petitioner for urgent hand loan of Rs.10
Lakhs and
promised to repay the same within a month. Thereafter, the
respondent repaid a sum of Rs.5 Lakhs and there was a due of Rs.5
Lakhs, for which, the respondent issued two cheques bearing
nos.000003 dated 25.09.2017 and 000004 dated 25.11.2017 drawn
on Kotak Mahindra Bank, Chennai. The said cheques when presented
for collection were dishonoured for the reason 'funds insufficient'.
Hence, the petitioner after issuing legal notice lodged the complaints
under Section 138 of the Negotiable Instruments Act before the trial
Court and the trial Court acquitted the respondent.
4.The learned counsel appearing for the petitioner further
submitted that the initial burden lies upon the petitioner to prove that
there was legally enforceable debt by the respondent and the same
was established. The petitioner has clearly stated in his complaints
that the respondent was introduced to the petitioner through common
friends in the business circle and the respondent obtained hand loan
of Rs.10 Lakhs and promised to repay the same within a month.
Thereafter, the respondent repaid a sum of Rs.5 Lakhs and the
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
balance Rs.5 Lakhs was not repaid.
5.The learned counsel appearing for the petitioner further
submitted that the respondent himself admitted in his chief and cross
examination that the signature in the instruments are his signature,
however, the respondent created a story as if the petitioner
threatened him stating that his henchmen are waiting near the School
in which the respondent's daughter is studying and took him to Ashok
Pillar Saravanabhavan Hotel and demanded cheques, which is an
after thought story cooked up by the respondent inorder to deprive
the rights of the petitioner. Further, the respondent lodged a false
complaint as against the petitioner and filed Crl.O.P.No.28031 of
2017 for direction to register a case against the petitioner and
obtained an order dated 18.12.2017 from this Court. It is only a
cooked up after thought story which is not sustainable and the trial
Court believing the respondent's words acquitted the respondent,
which is not sustainable one.
6.The learned counsel appearing for the petitioner further
submitted that the petitioner sent legal notice to the respondent
before filing the complaints under Section 138 of the Negotiable
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
Instruments Act and the respondent sent reply and the reply did not
reveal anything with regard to the complaint dated 28.07.2017
lodged by the
petitioner in the Kumaran Nagar Police Station against the
respondent. The learned counsel further submitted that when the
respondent admitted his signature in the instruments, it is for him to
rebut the presumption. However, the trial Court without properly
adjudicating the issue, acquitted the respondent and hence, the
petitioner is entitled for leave to file appeals against the impugned
order.
7.Heard the learned counsel appearing for the petitioner and
perused the materials available on record.
8.It is the consistent ratio of the Courts that grant of leave is
not a matter of right; rather it is the edifice on which the liberty of
the person, who has been accused of a crime rests and where a
person, who had been accused of a crime had been acquitted by the
Court below, a presumption follows the golden rule that a person is
presumed innocent until proven guilty and on that basis the second
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
presumption on the basis of the acquittal necessitates the Appellate
Court to scrutinize the materials more carefully. Further, grant of
leave to prosecute should not be as a matter of routine, but should be
on just and equitable basis, when materials reveal that the Court
below has not appreciated the materials in proper perspective.
9.Grant leave provided for under Section 378 (4) of Cr.P.C. is
not an empty formality, but has been brought into the statute only to
safeguard the interests of the persons accused of a crime, who have
since been acquitted, as otherwise, they would be put through the
rigours of continuous litigation even after their innocence has been
accepted by the Courts below.
10.In the present case, the petitioner claim that the petitioner
is doing cable lining and transport contract business and through
common friends in the business circle, the respondent was introduced
to the petitioner. During April, 2017, the respondent approached the
petitioner for urgent hand loan of Rs.10 Lakhs and promised to repay
the same within a month. Thereafter, the respondent repaid a sum of
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
Rs.5 Lakhs, however, the date on which the amount of Rs.5 Lakhs
was repaid was not mentioned in the complaints. The petitioner
claim that for the balance amount of Rs.5 Lakhs, the respondent
issued two cheques bearing nos.000003 dated 25.09.2017 and
000004 dated
25.11.2017 drawn on Kotak Mahindra Bank, Chennai. The said
cheques when presented for collection were dishonoured for the
reason 'funds insufficient'.
11.However, perusal of records reveal that the respondent
examined himself as D.W.2 and in his evidence, he has admitted that
he borrowed a sum of Rs.10 Lakhs from the petitioner on 24.04.2017
and paid a sum of Rs.22 Lakhs as on 11.07.2017 to the petitioner and
even thereafter, the petitioner demanded a sum of Rs.5 Lakhs and
made a complaint against the respondent on 28.07.2017 before the
Kumaran Nagar Police Station, based on which, the law enforcing
agency summoned the respondent for enquiry and thereafter, the law
enforcing agency asked the parties to solve the dispute out of station
and thereafter the petitioner threatened the respondent stating that
his henchmen are waiting near the School in which the respondent's
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
daughter is studying and took him to Ashok Pillar Saravanabhavan
Hotel and demanded cheques and hence the respondent asked his
friend/ D.W.1 to bring the cheque book from his house and informed
his wife to give the cheque book to D.W.1 and the respondent issued
the cheques.
12.D.W.1 in his evidence has deposed that he know the
respondent for about 14 years and on 28.07.2017 at about 5.00 p.m.,
the respondent called him over phone and asked to bring his cheque
book from his wife and accordingly D.W.1 went to the house of
D.W.2 and brought the cheque book and handed over the same to
D.W.2 in Ashok Pillar Saravanabhavan Hotel. At that time, the
petitioner was accompanied by 4 to 5 other persons and when D.W.1
asked D.W.2 about the need for cheque book, he replied that unless
he give the cheque book to the petitioner, the petitioner will not leave
him.
13.Perusal of the evidence let in by D.W.1 and D.W.2 makes it
clear that the respondent borrowed a sum of Rs.10 Lakhs from the
petitioner on 24.04.2017 and paid a sum of Rs.22 Lakhs as on
11.07.2017 to the petitioner and even thereafter, the petitioner
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
demanded a sum of Rs.5 Lakhs and made a complaint against the
respondent on 28.07.2017 before the law enforcing agency and since
the same was not successful, the petitioner threatened the
respondent stating that his henchmen are waiting near the School in
which the respondent's daughter is studying and took him to Ashok
Pillar Saravanabhavan Hotel and demanded cheques and hence the
respondent asked his friend/ D.W.1 to bring the cheque book from his
house and informed his wife to give the cheque book to D.W.1 and
the respondent issued the cheques. Thereafter, the respondent
made complaint before the law enforcing agency and since the law
enforcing agency did not take any effective steps, filed
Crl.O.P.No.28031 of 2017 before this Court for direction to register a
case against the petitioner and this Court vide order dated
18.12.2017 allowed the said petition. The trial Court after elaborately
discussing all the factual aspects, acquitted the accused, which
warrants no interference.
14.As stated above, to grant leave, a case should be made out
which bristles with infirmities which strikes at the root of the findings
recorded. However, in the case on hand, the petitioner has not made
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
out a case, where the findings are so very perverse that there has
been miscarriage of justice warranting this Court to grant leave to set
right the wrong that has been committed by the Court below.
15.No infirmities or other materials are placed which
necessitates relook into the findings recorded by the Court below and
granting leave to appeal would be nothing but a travesty of justice
insofar as the respondent is concerned, who has been acquitted
through a well considered judgment passed by the Court below.
16.In view of the above, the petitioner is not entitled for grant
of leave to file appeals against the orders passed by the trial Court.
The criminal original petitions are dismissed. Consequently, the
criminal appeals are rejected at the SR stage itself.
04.06.2024
pri
Index: Yes/ No
Speaking Order: Yes/ No
NCC: Yes/ No
To
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
1.The III Fast Track Metropolitan Magistrate Court at
Saidapet, Chennai.
M.DHANDAPANI,J.
pri
and 10676 of 2024
In
Crl.A.SR.Nos.33115 and
33117 of 2023
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.27454 of 2023 and 10676 of 2024
In Crl.A.SR.Nos.33115 and 33117 of 2023
04.06.2024
https://www.mhc.tn.gov.in/judis
