Madras High Court
N.Nagarajan vs C.Subramani on 5 June, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
Crl.O.P.No.10835 of 2024
In Crl.A.SR.No.8993 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2024
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Crl.O.P.No.10835 of 2024
In
Crl.A.SR.No.8993 of 2024
N.Nagarajan ... Petitioner
Vs.
C.Subramani ... Respondent
Prayer:
Criminal Original Petition filed under Section 378 (4) of Criminal
Procedure Code, seeking to grant special leave to file criminal appeal
against the judgment dated 10.08.2023 passed by the learned
Judicial Magistrate, Additional Mahila Court in C.C.No.562 of 2021.
For Petitioner : Mr.L.Mouli
ORDER
The criminal original petition has been filed seeking to grant
special leave to file criminal appeal against the judgment dated
10.08.2023 passed by the learned Judicial Magistrate, Additional
Mahila Court in C.C.No.562 of 2021.
https://www.mhc.tn.gov.in/judis
2.The petitioner is the complainant in C.C.No.562 of 2021, on
the file of the learned Judicial Magistrate, Additional Mahila Court,
Namakkal 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 petitioner and the respondent are living in the same village
and out of such acquaintance, the respondent borrowed a sum of Rs.4
Lakhs as hand loan from the petitioner on 08.12.2019 and inorder to
repay the same, the respondent issued cheque bearing no.980477
dated 06.01.2020 drawn on ICICI Bank, Salem Road, Namakkal
Branch for a sum of Rs.4 Lakhs. The said cheque when presented for
collection was dishonoured for the reason 'account closed – frozen' on
06.01.2020. Thereafter, the petitioner issued legal notice dated
09.01.2020 to the respondent and the same was received by the
respondent on 11.01.2020, however, the respondent neither gave any
reply nor repaid the amount 06.01.2020. Hence, the petitioner
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lodged
the complaint under Section 138 of the Negotiable Instruments Act as
against the respondent.
4.The learned counsel appearing for the petitioner further
submitted that the respondent did not deny the signature in the
instrument and further submitted that the petitioner, in order to
prove the case, examined himself as P.W.1 and marked exhibits
Ex.P1 to Ex.P4. The respondent neither examined any witness nor
marked any exhibit, however, for extraneous reason, the trial Court
acquitted the respondent, which is not sustainable.
5.Heard the learned counsel appearing for the petitioner and
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
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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.
8.In the present case, the petitioner claim that the respondent
borrowed a sum of Rs.4 Lakhs as hand loan from the petitioner on
08.12.2019 and inorder to repay the same, the respondent issued
cheque bearing no.980477 dated 06.01.2020 drawn on ICICI Bank,
Salem Road, Namakkal Branch for a sum of Rs.4 Lakhs. The said
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cheque when presented for collection was dishonoured for the reason
'account closed – frozen' on 06.01.2020, however, the petitioner
neither in the complaint nor in the chief examination has mentioned
about the date on which the cheque in question was issued. Further
in the cross examination, the petitioner has admitted that he paid a
sum of Rs.50,000/- to the respondent in an earlier occasion and for
non payment of the said amount, he made police complaint and
received the amount.
9.In an earlier occasion, the petitioner had approached the
Police Station for non payment of Rs.50,000/- by the respondent,
hence it is unbelievable that subsequently, the petitioner gave a sum
of Rs.4 Lakhs as hand loan to the respondent. 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
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been miscarriage of justice warranting this Court to grant leave to set
right the wrong that has been committed by the Court below.
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.
05.06.2024
pri
Index: Yes/ No
Speaking Order: Yes/ No
NCC: Yes/ No
To
1.The Judicial Magistrate,
Additional Mahila Court,
Namakkal.
https://www.mhc.tn.gov.in/judis
M.DHANDAPANI,J.
pri
In
05.06.2024
https://www.mhc.tn.gov.in/judis
