Madras High Court
R.Rajendran vs Dr.M.Balamurugan on 6 September, 2024
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.332 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.09.2024
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.332 of 2024
R.Rajendran ... Appellant
Vs.
Dr.M.Balamurugan ... Respondent
PRAYER: Criminal Appeal filed under Section 378(4) of Code of Criminal
Procedure, to set-aside the order of acquittal of the respondent/accused in
C.C.No.530 of 2016 on the file of the Fast Track Court No.I, Judicial
Magistrate, Coimbatore, Old C.C.No.815 of 2015 on the file of the Judicial
Magistrate No.II, Coimbatore dated 12.01.2024.
For Appellant : Mr.Joseph.I
For Respondent : Ms.K.Anusuya,
Legal Aid Counsel
JUDGMENT
The appellant as a complainant filed private complaint under Section
138 of the Negotiable Instruments Act, 1881 (In short 'The Act') against the
respondent in C.C.No.530 of 2016 (Old C.C.No.815 of 2015 on the file of
the Judicial Magistrate No.II, Coimbatore) before the learned Judicial
Magistrate, Fast Track Court No.I, Coimbatore/Trial Court and the same
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was dismissed vide impugned judgment, dated 12.01.2024 acquitting the
respondent from the case. Against which, the present criminal appeal is
filed.
2.Gist of the complaint is that the appellant and the respondent are
friends, on 10.04.2012 the respondent met the appellant, expressed his
financial trouble in his family and requested to lend loan for a sum of
Rs.8,00,000/- and agreed to repay the same with interest. Trusting the
respondent, the appellant gave loan for a short term on 10.04.2012. After
obtaining the loan, within a short period the loan could not be repaid despite
the appellant made several request to the respondent for repayment. After a
long time, the respondent executed promissory note (Ex.P1) for the loan
taken with interest on 09.03.2015 and issued cheque drawn on HDFC Bank,
Coimbatore. When the cheque was presented on 09.03.2015, the same was
returned on 12.03.2015 for the reason “funds insufficient”. Thereafter, the
appellant sent legal notice, dated 19.03.2015 to the respondent demanding
repayment. The respondent received the notice on 20.03.2015 but failed to
make the payment. On the other hand, the respondent sent belated reply
notice with false allegation, for which, rejoinder sent. Hence, the private
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complaint filed.
3.During trial, on the side of the appellant/complainant, he examined
himself as PW1 and marked eight documents as Exs.P1 to P8. On the side
of the defence/respondent, he examined himself as DW1 and marked two
documents are Exs.D1 & D2. On completion of trial, the Trial Court
dismissed the complaint acquitting the respondent as stated above.
4.The learned counsel for the appellant/complainant submitted that the
Trial Court failed to consider the explanation given for wrongly mentioning
the cheque number in the statutory notice and in the complaint. The Trial
Court failed to consider the reason given in the proof affidavit for
mentioning wrong cheque number. The respondent not raised any objection
and shown any prejudice due to the mistake committed by the appellant. In
the cheque (Ex.P2), both the numbers 000032 and 000739 are available.
Instead of giving the cheque number, the other number which is available
mentioned in the statutory notice. In this case, there is no dispute with
regard to drawer of the cheque, bank details, amount filled up and the
signature in the cheque. As regards the liability of Rs.8,00,000/- is only
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disputed and not on the cheque number. In such circumstances, the Trial
Court taking difference in the cheque number and giving benefit of doubt to
the respondent is not proper. He further submitted that the Trial Court failed
to consider that once the signature in the cheque not denied, the statutory
presumption under Sections 118 and 139 of the Act comes into play and it is
for the Drawer of the cheque to give explanation and probabilize the cheque
is not issued in discharge of any liability. Finding of the Trial Court is that
in the complaint and statutory notice, there is no reference to the other
transaction, but during cross examination the appellant admits about other
transaction of Rs.2,00,000/- when a question put to him. Hence, it is a
suppression of fact, is not proper. For the other transaction of Rs.2,00,000/-
the amount was given in cheque, there is no reason for handing over of
Rs.8,00,000/- in cash. This reasoning of the Trial Court is also not proper.
From 10.04.2012 to 02.09.2012 when the respondent not repaid the loan
already taken, the appellant giving another loan of Rs.8,00,000/- is
unbelievable. The appellant proved the fact that he had sufficient cash in
hand by producing the bank statement (Ex.P8) wherein on 10.04.2012 the
appellant had withdrawn Rs.7,50,000/- from his bank account. Adding
Rs.50,000/- with Rs.7,50,000/-, the appellant gave loan of Rs.8,00,000/- to
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the respondent. The respondent not denied about execution of promissory
note (Ex.P1). Thus, the cheque (Ex.P2) and promissory note (Ex.P1) proved
the transaction and liability of the respondent. The respondent has not
shown any proof of liability and not given proper explanation, but the Trial
Court on technicality of mentioning wrong cheque number dismissed the
complaint. Hence, he prayed for setting aside the judgment of the Trial
Court.
5.The learned counsel for the respondent submitted that the
respondent borrowed a sum of Rs.2,00,000/- from the appellant on
02.09.2012, at that time, blank signed cheque and promissory notice handed
over to the appellant as security. This was filled up and false case alleging
that the respondent borrowed a sum of Rs.8,00,000/- on 10.04.2012 is
projected. She further submitted this transaction not referred in the statutory
notice (Ex.P4). The appellant/PW1 further reaffirms that except for the
transaction pertaining to Rs.8,00,000/-, there is no other transaction with the
respondent which is contrary to the rejoinder (Ex.P7). Later, PW1 admits
that there is other transaction of Rs.2,00,000/- between them which was by
way of cheque and bank transaction on 02.09.2012. The respondent
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discharged the amount of Rs.2,00,000/- is also admitted. The alleged loan
amount of Rs.8,00,000/- which said to have given on 10.04.2012 by way of
cash stands falsified for the simple reason that the cheque said to have issued
for a transaction took place on 10.04.2012 when already a loan transaction
which is due there is no reason why a second loan of Rs.2,00,000/- has been
paid that too by way of cheque on 02.09.2012. The cheque (Ex.P2) came to
be issued on 09.03.2015 which only probabilized the respondent's defence
that security cheque which was given for other transaction of Rs.2,00,000/-
filled up without any authority.
6.She further submitted that the respondent got into the box and
confirmed in his evidence about the only one transaction of Rs.2,00,000/-
which has been discharged. It is further raised that on 09.03.2015, the
respondent and his wife were visiting Maruthamalai Temple, in proof of the
same, Ex.D2 marked. Likewise, Ex.D1 marked to confirm that on
09.01.2015 the appellant along with henchmen entered the respondent's
clinic and threatened him, for which a complaint was given to Vadavalli
Police Station and CSR.No.11 of 2015 assigned. Added to it, the appellant
admits that he referred to a wrong cheque number in the statutory notice as
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well as in the complaint and thereafter given explanation and corrected the
same in the proof affidavit. The Trial Court ought not to have taken
cognizance of the complaint when the fundamental mistake committed by
mentioning the wrong cheque number and the statutory notice refers
different cheque number. The Trial Court considering the cross examination
of the appellant and the respondent getting into the box as DW1 giving
evidence and marking Exs.D1 & D2, had found issuance of the cheque of
Rs.8,00,000/-, dated 09.03.2015 is not for discharge of any legally
sustainable liability and dismissed the complaint. She further submitted that
Higher Court on reappraisal of the evidence finds that though two views
possible then to adopt the view taken by the Trial Court unless until it is
proved to be perverse and a gross mistake committed. In this case, it is not
so. Hence, prays for dismissal of the appeal.
7.This Court considered the rival submissions and perused the
materials available on record.
8.The appellant projected the complaint that he and the respondent are
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close friends. The respondent being a Doctor sought financial assistance
from the appellant to tide over the difficult situation. Trusting the words, the
appellant gave loan of Rs.8,00,000/- on 10.04.2012. On that day, the
respondent said to have handed over the cheque (Ex.P1) and later the
promissory note (Ex.P2) in the year 2015. In the statutory notice, the
appellant not mentioned about the earlier transaction of Rs.2,00,000/- given
to the respondent by way of cheque drawn on Indian Bank on 02.09.2012.
The repayment of loan of Rs.2,00,000/- not disputed and confirmed by the
appellant. When the other loan, dated 10.04.2012 of Rs.8,00,000/- is
pending neither paid the interest nor repaid the principal, no prudent person
would subsequently extend another loan. Thus, the respondent probabilized
the defence that a blank cheque which was received for other loan of
Rs.2,00,000/- filled up and case projected based on Ex.P2, gains credence
since the cheque of Rs.8,00,000/- said to have been issued on 09.03.2015
three years later.
9.It is seen that the respondent lodged a Police complaint against the
appellant for trespassing into the respondent's clinic and threatening him to
repay the loan amount. On complaint, CSR.No.11 of 2015 assigned and the
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same marked as Ex.D1. After the reply of the respondent, the reply with
regard to other loan of Rs.2,00,000/- referred is admitted. But the appellant
failed to give any explanation for trespassing and threatening the respondent
on 07.01.2015 and the Police complaint at Vadavalli Police Station. The
appellant after cross examination finding hollowness, recalled himself and
marked Ex.P8 to show that on 10.04.2012, the appellant had withdrawn
Rs.7,50,000/- from his bank account and adding up with another Rs.50,000/-
, he gave loan of Rs.8,00,000/- by cash. It is unable to reason out that when
Rs.2,00,000/- given by way of cheque, how come Rs.8,00,000/- by cash.
The Trial Court considered the evidence and materials on both sides rightly
dismissed the complaint which needs no interference of this Court.
10.In view of the above, this Court is not inclined to interfere with the
judgment of acquittal, dated 12.01.2024 in C.C.No.530 of 2016 passed by
the learned Judicial Magistrate, Fast Track Court No.I, Coimbatore and the
same is hereby affirmed. Accordingly, this criminal appeal stands
dismissed.
11.This Court appreciates Ms.K.Anusuya, Legal Aid Counsel for her
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strenuous efforts and marshalling the facts and opposing the appellant.
06.09.2024
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
vv2
To
The Judicial Magistrate,
Fast Track Court No.I,
Coimbatore.
M.NIRMAL KUMAR, J.
vv2
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06.09.2024
https://www.mhc.tn.gov.in/judis
