Madras High Court
Gopinath vs H.Rakesh on 1 March, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:01.03.2024
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
CRL.A(MD) No.91 of 2014
Gopinath ... Appellant/Complainant
-vs-
H.Rakesh ... Respondent/Sole Accused
PRAYER : Criminal Appeal filed under Section 378 of Criminal
Procedure Code praying this Court to call for the records of the
Judgment made in S.T.C.No.540 of 2010, dated 10.01.2014, on the file
of learned Judicial Magistrate No.II, Tiruchirappalli, acquitting the
respondent accused for the offences under Section 138 of Negotiable
Instruments Act and set aside the same.
For Appellant : No appearance
For Respondent : No appearance
JUDGMENT
This Criminal Appeal is filed against the order of acquittal
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preferred by the complainant, who filed his complaint under Section
138 of Negotiable Instruments Act against the respondent/sole
accused.
2.When the matter is taken up for hearing today, there is no
representation for the appellant either in person or through counsel,
though advance list was published as early as on 19.02.2024
intimating the parties that the matter will be taken up for hearing
today.
3.The sum and substance of the complaint is that the
accused borrowed a sum of Rs.50,000/- from the complainant
promising to repay it with interest and in discharge of the said debt
Ex.P1 Cheque was issued for a sum of Rs.60,000/-. The said cheque is
dated 22.2.2010 and when the same was presented for encashment,
it was returned with an endorsement as insufficient fund. When
statutory notice was issued to the accused, a reply was sent by the
accused with untenable and false reasoning. Hence the complaint.
4.The trial Court, after appreciating the evidence let in on
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either side, had dismissed the complaint holding that the accised had
rebut the presumption, whereas, the complainant has failed to prove
the liability or the existence of the debt. Particularly, the trial Court has
pointed out that neither in the complaint nor in the Chief examination
of P.W.1, there is reference about the date on which the principal
amount of Rs.50,000/- advanced to the accused. Neither the rate of
interest been mentioned in the complaint. While so, for the principal
of Rs.50,000/- the complainant has claimed Rs.10,000/- towards
interest and pleaded that to discharge the said debt of Rs.50,000/-
with interest, the subject cheque was issued. Whereas, the accused in
the reply notice has contended that there was a business transaction
between him and the complainant for five years and all the dues were
already settled. The blank promissory note and cheque that has been
given as security for the previous transactions has been misued
after completion of buisness transaction.
5.The complainant aggrieved by the reasoning given by the trial
Court to dismiss the complaint, is before this Court stating that the
dismissal of the complaint initiated under Section 138 of Negotiable
Instruments Act without considering the statutory presumption under
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Section 139 of the Negotiable Instruments Act is erroneous. The Court
below ought not to have acquitted the accused, in the absence of any
satisfactory evidence to shift the burden of legal presumption. The
issuance of the cheque and acceptance of transaction is sufficient to
presume that the cheque was issued for enforceable debt. To rebut the
evidence, the accused ought to have place evidence to the contrary.
In the absence of any documentary or oral evidence, by the accused
to rebut the presumption that there is legally enforceable debt, the
complaint ought not to have been dismissed.
6.On a persual of the complaint, this Court finds that the liability
has not been specified in the complaint, except stating that the
accused had borrowed a sum of Rs.60,000/-and towards the payment
of amount with interest, the subject cheque was issued for Rs.60,000/-
The statutory notice which is marked as Ex.P4 also does not reveal
when the principal amount of Rs.50,000/- was borrowed and how the
money was paid to the accused. In the reply to the statutory notice
which is marked as ExP6, the accused has specifically denied the
allegation of transaction and also denied the issuance of cheque. It is
specifically stated that due to the earlier financial transaction, blank
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cheques and promissory notes were given and inspite of clearing of
the loans, those documents were not returned. The reply may not be
sufficient to rebut the presumption of issuance of cheque after
admitting the signature. However, the reason given by the trial Court
that the complaint is bereft of details of the existing liability appears
to be an acceptable reason. When in the reply itself, the liability has
been denied, the complainant ought to have placed materials before
the Court to prove the fundamental fact that the liability has arisen in
a particular manner. Since the complainant has failed to place evidence
to prove that there was liability in existence, the same is bound to be
dismissed.
7.When the accused has specifically denied the liability in the
reply, the complaint is bound to be dismissed for want of proof. The
trial Court has rightly dismissed the complaint.This Court finds no
reason to interfere with the said finding of the trial Court.
8.Accordingly, the Criminal Appeal is dismissed.
01.03.2024
https://www.mhc.tn.gov.in/judis
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
vsn
To:
1.The Judicial Magistrate NO.II,
Tiruchirappalli.
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
