Madras High Court
S.Gnanapandithan vs T.Senthilkumar 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.193 of 2013
S.Gnanapandithan ... Appellant
-vs-
T.Senthilkumar ... Respondent
PRAYER : Criminal Appeal is filed under Section 378 of the Code of
Criminal Procedure praying this Court to call for the records in S.T.C.No.
571 of 2007 on the file of the learned Judicial Magistrate No.2, Trichy and
set aside the judgment of said Court dated 06.05.2013, by allowing this
appeal.
For Appellant : Mr.R.Sundar
JUDGMENT
The learned counsel for the appellant states that the parties are taken
back the bundle. However, this Court finds that the appellant has not
https://www.mhc.tn.gov.in/judis
engage a new counsel and there is no representation for him.
2. The appeal is preferred being aggrieved by the dismissal of the
private complaint initiated by the appellant. While it is contended by the
appellant that the subject cheque for Rs.2,75,000/- was given by the accused
to discharge the loan liability, the same was contested by the accused that
the cheque was given in blank as security for the loan availed. Towards the
discharge of the loan, already he has paid Rs.1,50,000/- in cash and the
cheque given for a security being misused. While the specific case of the
complainant is that the accused borrowed Rs.4,00,000/- on 04.09.2003 with
promise to repay it with 12% interest, the same is denied by the accused
saying that he borrowed only Rs.2,00,000/- and for that he has already
repaid Rs.1,50,000/- and the cheque was only given as security and not to
discharge the debt.
3. The trial Court considering the evidence, particularly, the cross
examination of P.W.1 coupled with the documentary evidence relied by the
defence, namely, Ex.D1 to Ex.D3 has held that the presumption that the
https://www.mhc.tn.gov.in/judis
cheque was drawn towards discharge of legally enforceable debt being
rebutted by the accused. The cheque was presented after knowing that the
drawer of the cheque has instructed his bank to stop the payment. The trial
Court has reasoned his judgment by pointing out that the liability of
Rs.4,00,000/- attempted to be proved by marking pronote Ex.P1. However,
the complainant has failed to prove the pronote by examining the attesting
witnesses and therefore, concluded that the foundational fact has not been
proved to draw the presumption under Section 138 of NI act. If the case of
the complainant per se,issuance of cheque to discharge the liability and
proof of the foundational facts would have been sufficient to draw the
presumption under Section 139 of NI Act. However, in this case, the
accused has not only denied the liability and also questioned the validity of
the pronote, which was marked as Ex.D1.
4. In such circumstances, it is the duty of the complainant to prove
Ex.D1 pronote in the manner known to law, which unfortunately in this
case, he failed to do so. Except the complainant no other witnesses being
examined and the self serving statement of the complainant, without
https://www.mhc.tn.gov.in/judis
corroboration, as far as the execution of pronote, is concerned, it has
become fatal to the case of the complainant. This Court has to confirm the
judgment of the trial court, since it is based on reasoning and law.
Accordingly, this Criminal Appeal is dismissed.
01.03.2024
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
cp
To:
1.The Judicial Magistrate No.II,
Trichy.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
DR.G.JAYACHANDRAN,J.
cp
JUDGMENT MADE IN
01.03.2024
https://www.mhc.tn.gov.in/judis
