Madras High Court
A.Nataraj vs P.Ashok Kumar on 9 January, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.256 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
11.09.2024 09.01.2025
Crl.R.C.No.256 of 2021
A.Nataraj ... Petitioner
Vs.
1.P.Ashok Kumar
2.State of Tamil Nadu,
Rep. by Public Prosecutor. ... Respondents
PRAYER: Criminal Revision Petition filed under Sections 397 and. 401 of
Criminal Procedure Code, to set aside the fair and final order dated
24.06.2020 passed in Crl.A.No.425 of 2018 on the file of learned III
Additional District and Sessions Judge, Coimbatore and restore the fair and
final order dated 03.09.2018 passed in C.C.No.2216 of 2016 on the file of
the Judicial Magistrate, Fast Track Court at Magistrate Level-2,
Coimbatore.
1/15
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.256 of 2021
For Petitioner : Mr.S.S.Mathivanan
For R1 : Mr.C.Deepak Kumar
For R2 : Mr.A.Damodaran
Additional Public Prosecutor
ORDER
The petitioner as complainant filed a private complaint under Section
138 of Negotiable Instruments Act against the first respondent in
C.C.No.221 of 2016. The Trial Court by judgment dated 03.09.2018
allowed the complaint, found the first respondent guilty and sentenced him
to undergo six months simple imprisonment and to pay compensation of
Rs.10,00,000/- along with 6% interest from the date of the cheques.
Aggrieved against the same, the first respondent preferred an appeal before
the Sessions Court, Coimbatore in Crl.A.No.425 of 2018. The Sessions
Judge by judgment dated 24.06.2020 allowed the appeal, setting aside the
conviction and sentence imposed by the Trial Court and acquitted the first
respondent from the case. Against which, the present revision petition filed.
https://www.mhc.tn.gov.in/judis
2.The facts of the case is that the petitioner's claim is that the first
respondent is a family friend, who is a gold smith, for his urgent business
needs, the first respondent approached the petitioner for a loan and agreed
to pay interest for the loan. A sum of Rs.10,00,000/- was received by the
first respondent on 14.09.2015 and on the same day, he executed a
promissory note agreeing to repay the loan with 24% interest. On
14.03.2016, the first respondent issued two cheques towards discharge of
the loan for a sum of Rs.5,00,000/- each dated 15.03.2016 and 19.03.2016
respectively. When the cheques were presented for encashment, the same
got dishonoured for the reason 'Funds Insufficient'. Thereafter, the
petitioner issued statutory notice dated 24.03.2016. Though the notice was
received, the first respondent neither repaid the cheque amount nor replied.
Hence, the petitioner filed the complaint. During trial, the petitioner
examined himself as P.W.1 and marked documents Ex.P1 to Ex.P7. The
respondent examined himself as R.W.1 and marked documents Ex.R1 and
Ex.R2. The Trial Court convicted the first respondent but the Lower
Appellate Court set aside the conviction. Against which, the present
revision petition is filed.
https://www.mhc.tn.gov.in/judis
3.The contention of the learned counsel for the petitioner is that the
first respondent had not denied his signature in Ex.P1/promissory note,
Ex.P2 and Ex.P3/Cheques. The defence taken by the first respondent is that
he approached the petitioner through his friend Saravanan @ Govindaraj,
who introduced the petitioner as Financier and took him to the petitioner on
07.08.2015. The first respondent borrowed only a sum of Rs.1,00,000/-
from the petitioner, at that time, the petitioner demanded four cheques, two
promissory notes, handing over of title deeds and signed blank non-judicial
papers of Rs.20/- and Rs.50/-. Agreeing to the same, the respondent on
08.08.2015 handed over the documents along with two cheques drawn on
Indian Bank and two cheques drawn on Central Cooperative Bank. The
further defence of the respondent is that the promissory note typewritten, the
cheques filled up in black ink and the signature in the cheques were in blue
ink, which confirms the petitioner had filled up the blank cheques and the
promissory note. The further defence of the first respondent is that he
repaid the loan amount of Rs,.1,00,000/-, on 01.10.2015 when the first
respondent asked for return of blank promissory notes, cheques and title
documents, the petitioner is said to have informed him that the same were
https://www.mhc.tn.gov.in/judis
kept in the locker and he would collect the same and hand over to him. But
even after two months passed by, the documents were not returned. Hence,
on 01.03.2016 the first respondent went in person to the petitioner asking
for the documents. In the meanwhile, the said Saravanan @ Govindaraj
passed away. The petitioner claimed that the said Sarvanaran @ Govindaraj
borrowed Rs.4,00,000/- from the petitioner and unless the first respondent
settles the same, the documents will not be returned. Hence, the first
respondent sent a police complaint on 03.03.2016 to the Inspector of Police,
B2 R.S.Puram Police Station, and to the Commissioner of Police,
Coimbatore. This has been accepted to be a probable defence by the Lower
Appellate Court contrary to the Trial Court, which found the first
respondent admitting his signature in Ex.P1 to Ex.P3 and his explanation is
only an after thought. As per Section 20 of the Negotiable Instruments Act
once a blank signed instrument signed and handed over to the holder, the
executant to the document gives a right, authority to the holder to fill up the
same. Further, as per Section 118 of the Negotiable Instruments Act, the
presumption is in favour of the holder of the cheque/Negotiable Instrument.
Further, the Trial Court found that the complaint/Ex.R1 is addressed to the
https://www.mhc.tn.gov.in/judis
Assistant Commissioner of Police, Coimbatore which is without any
acknowledgment and Ex.R2 is a postal acknowledgment addressed to the
Inspector of Police, B2 R.S.Puram Police Station. Ex.R2 is not an
acknowledgment for Ex.R1 and both cannot be correlated. Further, the
admitted position of the respondent as could be seen from Ex.R1/police
complainant the first respondent admits execution of the documents and
deposit of title deeds. The first respondent later questioned the financial
capability of the petitioner, which was rejected by the Trial Court. Hence,
the conviction and sentence imposed by the Trial Court to be restored.
4.The learned counsel for the first respondent submitted that the
Lower Appellate Court considered both oral and documentary evidence
independently and rightly found that the first respondent has probabilised
his defence. The Lower Appellate Court found that though the signature in
Ex.P1 to Ex.P3 is admitted, Ex.P1 is in a typed form, though it is not
required to examine the witness to the promissory note but when the same
was questioned, the petitioner/complainant ought to have examined one
Chinnaraj witness to Ex.P1 promissory note. Likewise the petitioner
https://www.mhc.tn.gov.in/judis
claimed that he had taken loan from one Loganathan but he failed to
examine the said Loganathan. Further, the petitioner not given any
explanation for the difference in the ink colours in the cheques and there is
no explanation for the fact that for a loan of Rs.10,00,000/-, why two
cheques of Rs.5,00,000/- each obtained. The first respondent lodged a
complaint on 03.03.2016, in such circumstances the respondent would not
have given cheques dated 15.03.2016 and 19.03.2016. Further, in this case,
statutory notice was issued on 24.03.2016, the same was received by the
first respondent on 28.03.2016 and the complaint was filed on 13.04.2016
without waiting for fifteen days, hence no cause of action arose. It is further
submitted that when the first respondent questioned the financial capability
of the petitioner, he ought to have examined one Loganathan, from whom
he took loan or produced any documents to show the petitioner had
sufficient capability to pay the loan amount. Thus, the finding of the Lower
Appellate Court that the first respondent rebutted the statutory presumption
and probabilized his defence and hence, set aside the conviction and
allowed the appeal is in order needs no interference. Hence, prayed for
dismissal of the revision.
https://www.mhc.tn.gov.in/judis
5.In support of his contention, the learned counsel for the first
respondent relied upon the following judgments:
1) M.S.Narayana Menon Alias Mani vs. State of Kerala and
another reported in (2006) 6 SCC 39, Vijay vs. Laxman
and another reported in (2013) 3 SCC 86 and
K.Prakashan vs. P.K.Surenderan reported in (2008) 1
SCC 258 for the point that burden of proof on accused is
not heavy – he can discharge his burden on the basis of
preponderance of probability through direct or
circumstantial evidence. Further so long as the accused can
make his version reasonably probable, the burden of
rebutting the presumption would stand discharged.
2) Basalingappa vs. Mudibasappa reported in AIR 2019 SC
1983, M.Sivabakiyam vs. K.Kulanthaivel reported in 2023
Supreme (Mad) 2887 and K.Subramani vs. K.Damodara
Naidu reported in (2015) 1 SCC 99 for the point that the
complainant to prove his financial capability.
https://www.mhc.tn.gov.in/judis
3) B.Poongothai vs. K.Karuppusamy reported in 2021-1-
LW(Crl.) 441 for the point that non-reflection of
transaction in the Statement of Accounts and in the Income
Tax Returns ought to he taken note of.
4) Arumugam vs. K.S.Sampath Kumar reported in (2017) 2
MLJ(Crl.) 387 and G.S.Gunasekar vs. Vinayaga Trading
Company reported in 2017 Supreme (Mad) 422 for the
point that when the complainant deposes that he does not
know the accused where he resides, details of his business
transaction, in such cases the complainant failed to
establish his case that the cheque was issued in his favour
to discharge the liability.
5) M.R.Parthibanraj vs. R.Kausik reported in 2017 (4) MLJ
(Crl.) 675 and P.Eswaran vs. J.A.Abdul Hameed reported
in 2006 (2) Bankmann 481 for the point that different pens
used to fill the contents of the cheque and signature portion
of the cheques are sufficient to hold that the respondent
discharged his initial burden.
https://www.mhc.tn.gov.in/judis
6.Considering the submissions made and on perusal of the materials,
in this case the first respondent had not denied his signature in the
promissory note/Ex.P1 and two cheques/Ex.P2 and Ex.P3. The defence
taken by the first respondent is that he had approached the petitioner
through his friend Saravanan @ Govindaraj, who took him to the petitioner,
at that time, the first respondent handed over blank signed promissory notes,
blank signed cheques and blank signed non-judicial stamp papers. This is
during September 2015 and the amount borrowed was only Rs.1,00,000/-.
By December 2015, the first respondent is said to have repaid the entire loan
amount and discharged his liability. But to prove the same, the first
respondent is unable to produce any document or material. From perusal of
Ex.R1, which is the admitted case of the first respondent, it is seen that he
admits about the loan and handing over of four blank cheques including
Ex.P2 and Ex.P3. It is also to be seen that the admitted case of the first
respondent is that he handed over properly Document No.15693/2010 to the
petitioner. For a loan of Rs.1,00,000/- neither there would be a demand of
title deeds by the loaner nor the loanee would hand over the title deeds
which would prove that the defence propounded by the first respondent is
https://www.mhc.tn.gov.in/judis
unacceptable. Added to it, the first respondent had not denied the receipt of
statutory notice/Ex.P6 and Ex.P7 is the acknowledgment for receipt of
statutory notice by the first respondent. The signature of the first
respondent in Ex.P1 to Ex.P3 and P.W.7 confirm that the first respondent
had consciously and knowingly executed the documents for the loan of
Rs.10,00,000/-. The first respondent is unable to give any reason as to why
there is no reply for the statutory notice/Ex.P6. The Lower Appellate Court
had given a finding that it is not necessary to examine the witness to the
promissory note/Ex.P1and further confirms the execution of Ex.P1 to Ex.P3
by the respondent but merely on the difference in the ink, it cannot reject
Ex.P1 to Ex.P3. Likewise, the Lower Appellate Court confirms that Ex.R1
is the copy of the complaint and Ex.R2 is the acknowledgment but it is for
two different persons. The first respondent failed to produce the copy of the
acknowledgment for Ex.R1 and the copy of the complaint for Ex.R2.
Hence, it cannot be construed that the first respondent has probablized his
defence.
https://www.mhc.tn.gov.in/judis
7.That being so, holding that during cross examination the petitioner
admitted that the first respondent preferred a complaint and coming to the
conclusion that the admitted facts need not be proved is not proper. During
the cross examination of P.W.1 on 09.12.2016, it is seen that Ex.R1 and
Ex.R2 not produced, marked as exhibits and the documents not confronted
with the petitioner. Ex.R1 and Ex.R2 marked by the first respondent who
examined himself as R.W.1 on 06.07.2017. Hence, the finding of the Lower
Appellate Court that the admitted facts need not be proved as regards Ex.R1
and Ex.R2 is not proper. Likewise, the finding of the Lower Appellate
Court that why two cheques have been given to discharge one loan is not
acceptable since the cheques are of two different dates and for the financial
arrangements, such cheques are given. Thus, this Court is of the view that
the finding of the Lower Appellate Court is not on proper appreciation of
evidence and materials produced and hence, the same is not sustainable.
Further, on the facts and circumstances of the above case it is seen that in
this case, the Trial Court convicted the first respondent but the Lower
Appellate Court acquitted him without proper appreciation of evidence
leading to miscarriage of justice. Hence, this case cannot be viewed merely
https://www.mhc.tn.gov.in/judis
as a case of appeal against acquittal since two contra judgment has been
passed by the Courts below.
8.Accordingly, the Criminal Revision Petition stands allowed, the
judgment of acquittal rendered by the learned III Additional District and
Sessions Judge, Coimbatore in Crl.A.No.425 of 2018 dated 24.06.2020 is
set aside and the conviction and sentence passed and imposed by the learned
Judicial Magistrate, Fast Track Court at Magistrate Level-2, Coimbatore in
C.C.No.2216 of 2016 dated 03.09.2018 is restored. The learned Judicial
Magistrate, Fast Track Court at Magistrate Level-2, Coimbatore is directed
to issue conviction warrant immediately and secure the first respondent to
undergo his period of sentence without any delay.
09.01.2025
Speaking Order/Non Speaking Order
Index : Yes/No
Neutral Citation: Yes/No
cse
https://www.mhc.tn.gov.in/judis
To
1.The III Additional District and Sessions Judge,
Coimbatore.
2.The Judicial Magistrate,
Fast Track Court at Magistrate Level-2,
Coimbatore.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
M.NIRMAL KUMAR, J.
cse
Pre-delivery order made in
09.01.2025
https://www.mhc.tn.gov.in/judis
