Madras High Court
K.Ramaswamy vs S.Radhabai on 1 March, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
2024:MHC:1160
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:01.03.2024
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
CRL.A(MD) No.375 of 2013
K.Ramaswamy ... Appellant/Complainant
-vs-
S.Radhabai ... Respondent/Accused
PRAYER : Criminal Appeal filed under Section 378 of Criminal
Procedure Code praying this Court to set aside the judgement made in
S.T.C.No.706 of 2013, dated 21.10.2013, on the file of Judicial
Magistrate No.II, Trichy.
For Appellant : Mr.R.Maheswaran
For Respondent : Mr.C.Susikumar
JUDGMENT
This Criminal Appeal is filed against the order of acquittal
preferred by the complainant and the private complaint initiated by
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the appellant under section 138 of Negotiable Instruments Act has
been disbelieved by the Court below. Hence the present Criminal
Appeal.
2.The short point involved in this appeal is:
Whether the trial Court dismissal of the complaint on the
ground that the accused rebut the presumption under Section 139 of
Negotiable Instruments Act, is sustainable or not?
3.Before adverting to answer the question framed, it is
profitable to put the facts in nut-shell:
The complaint against the respondent accused was lodged
under Section 138 of Negotiable Instruments Act stating that the
respondent had borrowed a sum of Rs.5,40,000/- from the
complainant promissing to repay the said sum with interest at the rate
of 24% pa within a period of six months. On 14.09.2011, the accused
gave a cheque for Rs.5,40,000/- drawn on Syndicate Bank, SRC
College Branch, Trichy and when the cheque was presented for
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collection, it got returned with an endorsement as insufficient funds.
Hence the complaint.
4.Before filing the complaint, statutory notice as
contemplated under Section 138 of the Negotiable Instruments Act
was issued to the accused. To prove the complaint, eight exhibits were
marked besides two witnesses examined. On the side of the accused,
one Rajmanikkam was examined as D.W.1, who is the sister’s
husband of the accused.
5.The trial Court, after apprciating the evidence has found
that the defense theory that the complainant had no wherewithal to
advance such a huge amount to the accused is acceptable. Therefore
the case of the complainant to be dismissed. The trial Court has also
stretched further saying that the sum of Rs.5,40,000/- probably
returned after six months with interest. Hence the case of the
complainant is doubtful. Thereafter, the trial Court has also observed
that no person will lend such a huge sum to the tune of Rs.5,40,000/-
without any security or promissory note or document of title.
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6.These sort of assumption and presumption by the trial
Court, in fact, is not expected material evidence to hold as discharge
of reverse burden. The decree of preponderance of probabilities cannot
be tyred through such surmise. Acquittal cannot be made under
Section 138 of Negotiable Instruments Act based on such presumption.
The improper appreciation of evidence requires the Court to interfere
in the order of acquittal. Hence the same is set aside.
7.The learned counsel for the respondent states that if the
evidence which has probablise the defence, is not appreciated
properly, the matter may be remanded back to the trial Court, for
proper appreciation of the evidence to prove the fundamentral fact.
This Court finds that such submission is fair and reasonable so that
the parties will have an opportunity to putforth the evidence in a
proper perspective.
8.In the result, the Criminal Appeal is allowed and the order
impugned herein passed by the trial Court is set aside and the matter
is remanded back to the trial Court for fresh appreciation of evidence
and the parties are directed to let in evidence in proof of their case.
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Since this case pending for the past ten years, the trial Court shall
give priorty to decide it on merits.
01.03.2024
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
vsn
To:
1.The Judicial Magistrate o.II,
Tiruchy.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN,J.
vsn
JUDGMENT MADE IN
01.03.2024
https://www.mhc.tn.gov.in/judis
