Madras High Court
Prasath vs Pmc Muthusamy on 29 April, 2025
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.A.(MD)No.199 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.04.2025
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A.(MD)No.199 of 2025
Prasath ... Appellant
versus
PMC Muthusamy ... Respondent
Criminal Appeal filed under Section 419 of the Bharathiya Nagarik
Suraksha Sanhita, 2023 (BNSS) and Section 378 (4) of Cr.P.C., to call for
the records and set aside the Judgment dated 27.10.2023 made in C.C.No.68
of 2018 by the Judicial Magistrate Court, Aruppukottai, acquitting the
respondent/accused and convict the respondent for the offence under
Section 138 of the Negotiable Instrument Act.
For Appellant : Mr.A.V.Arun
For Respondent : Mr.M.Jothi Basu
JUDGMENT
This Criminal Appeal is directed against the Judgment of acquittal
passed in C.C.No.68 of 2018 on the file of the learned Judicial Magistrate,
Aruppukkottai, dated 27.10.2023.
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2. The appellant has lodged a private complaint under Section 200
Cr.P.C., as against the respondent for the offence under Section 138 r/w.
Section 142 of the Negotiable Instruments Act, before the learned Judicial
Magistrate, Aruppukkottai and the same was taken on file in C.C.No.68 of
2018.
3. The case of the complainant is that the respondent has borrowed a
sum of Rs.5,00,000/- as hand loan on 09.09.2016 and for the discharge of
the said amount, he has issued a cheque (Ex.P1) dated 04.09.2017. When
the complainant presented the said cheque for collection on 06.09.2017, it
was returned with an endorsement as “insufficient funds”. Therefore, the
complainant has issued a notice, as required under Section 138(b) of the
Negotiable Instruments Act, to the respondent on 08.09.2017 and the same
was received by the respondent on 09.09.2017. The respondent, instead of
paying the cheque amount, has issued a reply notice on 21.09.2017 with
false averments. Therefore, the complainant has instituted the above
complaint as against the respondent for the offence under Section 138 of the
Negotiable Instruments Act.
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4. Before the trial Court, the complainant examined himself as P.W.1
and marked six documents, namely, Exs.P1 to P6. The respondent has also
entered into the box and his evidence was recorded as D.W.1 and two other
witnesses were also examined on the side of the respondent. The Bank
statement of the respondent was also marked as Ex.D1.
5. The respondent took a defence that the cheque (Ex.P1) was issued
as a collateral security for holding the post of President of SBK Primary
School and SBK KSS Thiyagarajan Matriculation School and the same was
misused by the complainant, who is the friend of his opponent one
Sudhakar, in order to prevent him from contesting the election. The defence
of the respondent was accepted by the trial Court. Therefore, the trial Court,
having found that the presumption under Section 139 of the Negotiable
Instruments Act was rebutted by the accused, shifted the liability on the
complainant and since the appellant has not proved his case, dismissed the
complaint, by its Judgement dated 27.10.2023. Aggrieved over the same,
the complainant has preferred this appeal.
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6. The learned counsel appearing for the appellant submits that the
cheque (Ex.P1) was issued by the respondent, which was not denied by him
and the signature found in Ex.P1 was also not denied by him. The cheque,
which was presented for collection, was returned with an endorsement as
“insufficient funds”. The return memo of the Tamil Nadu Mercantile Bank
was marked before the Court as Ex.P2. The legal notice issued under
Section 138(b) of the Negotiable Instruments Act was marked as Ex.P3
along with the acknowledgment (Ex.P4). Therefore, according to the
learned counsel for the appellant, the complainant has proved that the
respondent has issued a cheque for a sum of Rs.5,00,000/- which was
presented for collection and the same was returned with an endorsement as
“insufficient funds”. Therefore, on completion of the statutory period as
required under Section 138 of the Negotiable Instruments Act after the
receipt of notice, the offence under Section 138 of the Negotiable
Instruments Act is made out and therefore, a presumption under Section 139
of the Negotiable Instruments Act is made out in this case.
7. The learned counsel for the appellant further submits that the
solvency certificate required by the Nadar Uravinmurai Sangam is only
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from the Secretary, who is operating the Accounts and not from the
President. Further, the cheque would be obtained only at the inception of
the post, i.e. in the year 2012. But, the respondent held the post of President
from the year 2012 to 2015. Even assuming that the requirement of
issuance of cheque was available at that point of time, the cheque would
have been issued in the year 2012 and not in the year 2015, as projected by
the respondent.
8. The learned counsel for the appellant further submits that the
respondent, in his reply notice, has taken a stand that apart from the cheque
(Ex.P1), he issued five (5) promissory notes for a sum of Rs.1,00,000/- each
as security for holding the post of President. However, the respondent, in his
evidence, has stated contrary to his reply notice. But, the trial Court,
without considering the same, has erroneously dismissed the complaint, by
believing the evidence of the respondent.
9. Mr.M.Jothi Basu, learned counsel takes notice for the respondent
and submits that this cheque was given for collateral security for holding the
post of President of Schools run by the Nadar Uravinmurai Sangam.
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According to him, the Nadar Uravinmurai Sangam run several Educational
Institutions. One Samraj was the President of the Nadar Uravinmurai
Sangam. The Sangam run two schools in the name of SBK Primary School
and SBK KSS Matriculation School at Aruppukottai. The respondent was
the President of the Schools and D.W.2, one Soundara Pandiyan, was the
Secretary of the Schools from the year 2012 to 2015. Since the Secretary
and the President of the Schools are administering the entire affairs of the
School, the Sangam insisted for solvency from the President as well as from
the Secretary of the School. Therefore, as the respondent was holding the
post of President of SBK Primary School and SBK KSS Matriculation
School, he has issued the cheque (Ex.P1) in the year 2015, which was
misused by the complainant, who is the friend of the then President
Sudhakar, who intimidated the respondent and to prevent him from
contesting the election for Nadar Uravinmurai Sangam.
10. According to the learned counsel for the respondent, the President
of the Nadar Uravinmurai Sangam, Mr.Samraj, died in the year 2016. One
Sudhakar, who is the brother of the said Samraj, wanted to continue the post
of President of Nadar Uravinmurai, which was not accepted by the
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respondent. Therefore, the respondent has contested the election against the
said Sudhakar. The appellant herein is the friend of the said Sudhakar. The
election for Nadar Urainmurai Sangam was conducted on 05.09.2017. Two
days before the election, i.e., on 03.09.2017, there was a negotiation made
by the appellant along with the said Sudhakar requesting the respondent not
to contest for the post of President. But, the respondent did not agree for
the same. Therefore, the cheque, which was given for collateral
security/solvency for holding the post of President in the schools, has been
given by the said Sudhakar to the complainant/appellant and it was
presented for collection on 04.09.2017, i.e. just one day prior to the election.
In fact, the respondent was defeated in the election and subsequently, he was
elected as a President of the Nadar Uravinmurai Sangam and during the
evidence, he was the President of the Nadar Uravinmurai Sangam.
11. The learned counsel appearing for the respondent further submits
that the complainant has issued a legal notice on 08.09.2017, to which, a
reply notice was sent by the respondent on 21.09.2017. The respondent has
also entered into the box and examined himself as D.W.1. That apart, the
respondent has examined one Soundara Pandiyan, the then Secretary of
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SBK Primary School and SBK KSS Matriculation Schools as D.W.2 and
also examined the Bank Manager as D.W.3. As per the evidence of D.W.3,
except this cheque, all the cheques have been cleared. D.W.2, in his
evidence, has also substantiated the practice, which was adopted in the
Nadar Uravinmurai Sangam, by obtaining solvency/security for holding the
post of President or Secretary of the Schools. Therefore, according to him,
the cheque, which has been given as security/solvency for holding the post
of President of the schools, have been misused by the complainant at the
instance of the said Sudhakar. The trial Court has considered the evidence
on the side of the respondent and found that the presumption has been
rebutted by the accused and therefore, applying the ratio laid down, has
rightly rejected the complaint given by the appellant. Therefore, there is no
reason to interfere with the Judgment of the trial Court.
12. This Court has considered the rival submissions made and perused
the materials placed on record.
13. Since this appeal is filed as against the Judgment of acquittal, it is
necessary to bear in mind the principles governing the appeal against
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acquittal, as laid down by the Hon'ble Supreme Court in V.Sejappa v. State
[(2016) 12 SCC 150], wherein, the Hon'ble Supreme Court has followed its
own decision in Muralidhar v. State of Karnataka [(2014) 5 SCC 730]. The
guidelines issued in the said decision are extracted hereunder:
“23. ... ... (i) There is presumption of innocence in favour of
an accused person and such presumption is strengthened by the
order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the appeal
against acquittal;
(iii) Though, the powers of the appellate court in
considering the appeals against acquittal are as extensive as its
powers in appeals against convictions but the appellate court is
generally loath in disturbing the finding of fact recorded by the
trial court. It is so because the trial court had an advantage of
seeing the demeanour of the witnesses. If the trial court takes a
reasonable view of the facts of the case, interference by the
appellate court with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial court are palpably
wrong or based on erroneous view of the law or if such
conclusions are allowed to stand, they are likely to result in grave
injustice, the reluctance on the part of the appellate court in
interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation
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and re-evaluation of the evidence is inclined to take a different
view, interference with the judgment of acquittal is not justified if
the view taken by the trial court is a possible view. The evenly
balanced views of the evidence must not result in the interference
by the appellate court in the judgment of the trial court."
14. In yet another decision in the case of Chandrappa Vs State of
Karnataka [(2007) 4 SCC 415], the Hon'ble Supreme Court has laid down
the following general principles regarding powers of the appellate Court
while dealing with an appeal against an order of acquittal:
“(1) An appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts on
limitation restriction or condition on exercise of such power and
an appellate Court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and
compelling reaons', good and sufficient grounds', 'very strong
circumstances', distorted conclusions', 'glaring mistakes', etc are
not intended to curtail extensive powers of an appellate Court in
an appeal against acquittal. Such phraseologies are more in the
nature of 'flourishes of language' to emphasise the reluctance of
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an appellate Court to interfere with acquittal than to curtail the
power of the Court to review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved
guilty by a competent Court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate Court should not disturb
the finding of acquittal recorded by the trial Court.”
15. Admittedly the appellant and the respondent are the members of
the Nadar Uravinmurai Sangam. There was an election for the Nadar
Uravinmurai Sangam on 05.09.2017. The petitioner was holding the post of
Secretary of the school run by the Sangam. There is a practice in the
Sangam to get solvency / security for holding the post of President and
Secretary. According to the respondent, the cheque Ex.P1 was issued as
security for holding the post of President of the school run by the Nadar
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Uravinmurai Sangam.
16. The case of the appellant is that the respondent had borrowed a
sum of Rs.5 lakh and in discharge of the same, he issued the cheque (Ex.P1)
on 04.09.2017. The appellant has not substantiated his case other than his
statement that it was issued for loan transaction. The appellant is not having
any other document than Ex.P1. On the other hand, the respondent has
rebutted the presumption through evidence of DW2 and DW3. The banker
(DW3) of the respondent has stated that apart from this Ex.P1, all other
cheques prior to Ex.P1 and after Ex.P1 were cleared. However this cheque
Ex.P1 was returned. The respondent and the Secretary of the School have
entered the witness box and deposed on the practice prevailing in this Nadar
Uravinmurai Sangam in collecting security for holding the post of President
and Secretary of the schools run by the Nadar Uravinmurai Sangam. That
was not disputed by the appellant. The respondent has substantiated that
there was a negotiation to prevent the respondent from contesting the
election in Nadar Uravinmurai Sangam on 03.09.2017. The respondent has
rejected the request. Therefore the cheque was presented on 04.09.2017, just
one day prior to the date of election on 05.09.2017. Considering the
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materials and the ratio laid down by the Hon'ble Supreme Court cited above,
this Court is not inclined to entertain this appeal. Accordingly, this criminal
appeal is dismissed.
29.04.2025
ogy
NCC : Yes / No.
Index : Yes / No.
Internet : Yes / No.
To
The Judicial Magistrate Court,
Aruppukottai.
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B.PUGALENDHI, J.
ogy
29.04.2025
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