Madras High Court
P.Selvaraj vs S.P.Devaraj on 4 June, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
Crl.O.P.No.10630 of 2024
In Crl.A.SR.No.254 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.06.2024
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Crl.O.P.No.10630 of 2024
In
Crl.A.SR.No.254 of 2024
P.Selvaraj ... Petitioner
Vs.
S.P.Devaraj ... Respondent
Prayer:
Criminal Original Petition filed under Section 378 (4) of Criminal
Procedure Code, seeking to grant special leave to the petitioner
herein to file the above criminal appeal against the judgment passed
in S.T.C.No.17 of 2020 on the file of District Munsif cum Judicial
Magistrate, Uthukuli.
For Petitioner : Mr.S.Kaithamalai Kumaran
ORDER
The criminal original petition has been filed seeking to grant
special leave to the petitioner to file criminal appeal against the
judgment passed in S.T.C.No.17 of 2020 dated 29.09.2023 by the
learned District Munsif cum Judicial Magistrate, Uthukuli.
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2.The petitioner is the complainant in S.T.C.No.17 of 2020, on
the file of the learned District Munsif cum Judicial Magistrate,
Uthukuli and he filed complaint under Section 138 of the Negotiable
Instruments Act as against the respondent and after adjudication, the
trial Court acquitted the accused/ respondent. Aggrieved by the
same, the petitioner has filed this petition seeking leave to file
appeal.
3.The learned counsel appearing for the petitioner submitted
that the respondent inorder to meet his family and business expenses
availed a loan of Rs.5 Lakhs from the petitioner on 19.06.2019 and
assured to repay the same within a month and issued two cheques
bearing nos.700722 and 700723 dated 19.07.2019 drawn on ICICI
Bank, Gobichettipalayam for a sum of Rs.3 Lakhs and Rs.2 Lakhs
respectively. The said cheques when presented for collection were
dishonoured for the reason 'funds insufficient' on 20.07.2019.
Thereafter, at the instance of the respondent, the petitioner again
presented the cheques for collection on 25.07.2019 and again the
cheques were dishonoured for the reason 'funds insufficient' on
26.07.2019. Thereafter, at the assurance of the respondent, the
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petitioner again presented the cheques for collection on 22.08.2019
and again the cheques were dishonoured for the reason 'funds
insufficient' on 23.08.2019. Hence, the petitioner after issuing legal
notice lodged the complaint 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 petitioner, in order to prove that there was legally
enforceable debt, examined himself as P.W.1 and marked exhibits
Ex.P1 to Ex.P10. The respondent examined himself as D.W.1 and
marked exhibits Ex.D1 and Ex.D2. Though the respondent claim that
he issued blank cheques to one Ramesh, who is the brother of the
petitioner, in the year 2014 as security for a loan of Rs.1 Lakh and
the said loan was repaid in the year 2016 and the said blank cheques
were misused by the petitioner, he did not prove the said facts by
examining necessary witnesses, however, the trial Court acquitted
the respondent, which is not sustainable.
5.Heard the learned counsel appearing for the petitioner and
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perused the materials available on record.
6.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
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.
7.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.
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8.In the present case, the petitioner claim that the respondent
inorder to meet his family and business expenses availed a loan of
Rs.5 Lakhs from the petitioner on 19.06.2019 and assured to repay
the same within a month and issued two cheques bearing nos.700722
and 700723 dated 19.07.2019 drawn on ICICI Bank,
Gobichettipalayam for a sum of Rs.3 Lakhs and Rs.2 Lakhs
respectively. The said cheques when presented for collection were
dishonoured for the reason 'funds insufficient' on 20.07.2019.
Thereafter, at the instance of the respondent, the petitioner again
presented the cheques for collection on 25.07.2019 and again the
cheques were dishonoured for the reason 'funds insufficient' on
26.07.2019. Thereafter, at the assurance of the respondent, the
petitioner again presented the cheques for collection on 22.08.2019
and again the cheques were dishonoured for the reason 'funds
insufficient' on 23.08.2019.
9.However, perusal of records reveal that the respondent in his
defence has claimed that he issued blank cheques to one Ramesh,
who is the brother of the petitioner, in the year 2014 as security for a
loan of Rs.1 Lakh obtained in two installments, a sum of Rs.50,000/-
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on 17.03.2014 and another Rs.50,000/- on 24.03.2014 along with
promissory note and the said loan was repaid on 20.01.2016 and the
documents were not returned and the complainant/ petitioner
misused the blank cheques. Inorder to establish the same, the
respondent marked Ex.D2 which shows a series of cheques with
numbers before and after the cheques in question, specifically
700721, 700724, 700729, 700730, 700732, 700733 and 700734 and
they were successfully honoured on various dates between 2015 and
2016. Though the petitioner claim that the respondent issued the
cheques in question during the year 2019, it is an unbelievable story
since no one will preserve two cheques and issue the same after
three years. The trial Court after elaborately discussing all the
factual aspects, acquitted the accused, which warrants no
interference.
10.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
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.
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11.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.
12.In view of the above, the petitioner is not entitled for grant
of leave to file appeal against the order passed by the trial Court.
The criminal original petition is dismissed. Consequently, the
criminal appeal is rejected at the SR stage itself.
04.06.2024
pri
Index: Yes/ No
Speaking Order: Yes/ No
NCC: Yes/ No
To
1.The District Munsif cum Judicial Magistrate,
Uthukuli.
https://www.mhc.tn.gov.in/judis
M.DHANDAPANI,J.
pri
In
04.06.2024
https://www.mhc.tn.gov.in/judis
