Madras High Court
Devasena vs Elangovan on 9 June, 2025
Crl.A(MD)No.292 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.06.2025
CORAM:
THE HON'BLE MS.JUSTICE R.N.MANJULA
Crl.A(MD)No.292 of 2017
Devasena
... Appellant/Complainant
Vs
Elangovan
... Respondent
Prayer: This Criminal Appeal Case filed under Section 374 of Cr.P.C to call
for records and set aside the order passed in Crl.A.No.05 of 2016, dated
18.10.2016 on the file of the learned II Additional Sessions Judge,
Trichirappalli against CC No.25 of 2014, dated 21.02.2016 on the file of
learned Judicial Magistrate, Musiri, Trichy District by allowing this Appeal.
For Appellant : Mr. A.Joel Paul Antony
For Respondent : Mr.T.Lenin Kumar
JUDGMENT
The present Criminal Appeal has been filed challenging the
Judgment of the learned II Additional Sessions Judge, Trichirappalli, dated
18.10.2016 made in Crl.A.No.05 of 2016.
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2.The appellant is the complainant, who had filed a private
complaint against the respondent for the offence under Section 138 of
Negotiable Instrument Act, 1881 (hereinafter referred to as 'NI Act') on the
allegation that on 25.06.2013, the accused/respondent had obtained a loan of Rs.
5 lakhs from the complainant and executed a pro-note. When the complainant
demanded the loan amount to be returned back, the respondent has issued a
cheque, dated 20.12.2013 towards discharge of the loan. The above cheque was
deposited for collection with the complainant's bank, Indian Overseas Bank,
Musiri on the same day and it was returned citing the 'funds insufficient'.
3.The trial Court has taken cognizance of the complaint and after
observing the legal mandates, examined the witnesses of the complainant and
the respondent. On the side of complainant, one witness was examined as P.W.1
and 6 documents were marked as Ex.P.1 to Ex.P.6. On the side of respondent,
four witnesses were examined as D.W.1 to D.W.4 and 2 documents were marked
as Ex.D.1 to Ex.D.2.
4. At the conclusion of the trial, appreciating the evidence available
on record, the trial Court has found guilty of accused for the offence under
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Section 138 of NI Act and convicted and sentenced with an imprisonment for a
period of 5 months along with compensation of Rs.10,000/-.
5.The appeal filed by the respondent before the II Additional
Sessions Judge, Trichirappalli was allowed by setting aside the Judgment of the
trial Court and acquitting the respondent. Aggrieved over that, the complainant
on leave has preferred this appeal.
6. The learned counsel for the appellant submitted that the trial
Court has rightly given presumption under Section 139 NI Act in favour of the
complainant and the first appellate Court reversed the Judgment by recording the
reason that the appellant did not have means to lend the sum of Rs. 5 lakhs. It is
further submitted that the accused did not rebut the initial presumption, despite
the same the first appellant Court had reversed the Judgment of trial Court
without any basis.
7. The learned counsel for the respondent submitted that the defence
taken by the respondent is that he had given a cheque to one Chandrasekar with
whom he did not have good terms and it was Chandrasekar, who had utilized the
cheque given by the respondent to him, for filing this case the cheque case
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through this complainant. In fact, there was some quarrel between the
respondent and the said Chandrasekar and during the said quarrel, the
Chandrasekar threatened the respondent that he would file a case and in view of
that, the respondent has given a police complaint against the Chandrasekar and
others. So it is claimed by the learned counsel for the respondent that the cross-
examination of PW1 and the evidence of defence side witnesses, DW1 to DW4,
the respondent has successfully rebutted the initial presumption under Section
139 of NI Act and it was rightly appreciated by the learned II Additional
Sessions Judge in order to set aside the Judgment of trial Court.
8. I have given my anxious consideration to the submissions made
on either side and carefully perused the records.
9. The very contention of the appellant raised before the trial Court
is that the respondent is well known to her and due to that acquittance, she had
given a loan of Rs.5 lakhs to the respondent, on getting a promissory note for the
same. The respondent did not deny the fact that he has executed the impugned
cheque, dated 20.12.2013. However, he denied that the cheque was not given to
the complainant, as he did not borrow any money from her.
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10. When the executant of the cheque admitted his execution, the
bearer of the cheque will no doubt get the benefit of initial presumption under
Section 139 of NI Act. In such case, the burden would shift upon the respondent
to disprove the fact that the impugned cheque was not supported by
consideration. Only when the initial presumption is not rebutted by the
respondent and the evidence on the side of the complainant has been consistent
and strong enough to prove the initial presumption to be culminated into a
conclusive proof, it is possible for the Court to find the respondent guilty under
Section 138 of NI Act.
11. On perusal of evidence of PW1, she has stated that she did not
know the house address of the respondent. Her husband is working as a Lorry
Driver in a private concern and his name is Dinakaran. She has further stated
that she knew the accused through one Ravichandran, who is the friend of her
husband. However, she has not stated these facts in her complaint. She has
further stated that on 25.06.2013, when she lent a loan of Rs.5 lakhs, as alleged
in her complaint, her husband was also there. Though the respondent has
executed the promissory note on the same day, it was not attested by her
husband. She has further stated in her cross-examination that her husband was
earning Rs.15,000/- per month and he did not have any properties. They are
living in a rented house and the complainant is running a Tailoring shop.
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12. While discharging the burden of rebutting the initial
presumption under Section 139 of NI Act, the respondent can either let positive
evidence or to rely the infirmities in the evidence of complainant in order to
fulfil the requirement of preponderance of probabilities for the purpose of
rebuttal.
13. In the instant case, from the very evidence of PW1 it is seen that
she did not know the house address of the respondent and despite her husband
was present at the time of alleged loan of Rs.5 lakhs, she did not prefer to get his
attestation in the promissory note. Even the financial capability of the
complainant and her husband was also confronted by the respondent during the
cross examination and it is revealed that the complainant and her husband did
not have enough income or property in order to lend a hefty loan of Rs.5 lakhs.
14. The respondent has examined himself as DW2 and has stated
that he was running a Finance business with one Chandrasekar and due to which
he had money transactions with him. During that time he had given his cheque
book to Chandrasekar and it contains 10 cheques. He further submitted that after
some time, there was some misunderstanding between the respondent and
Chandrasekar and hence he came out of the business. But he did not get back
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the cheque book given to the said Chandrasekar.
15. The learned counsel for the appellant submitted that despite the
respondent taken up this defence, he did not choose to examine the said
Chandrasekar. When the respondent stands not in friendly terms with
Chandrasekar, he could not expect to summon Chandrasekar and examine him.
But he has examined the witnesses DW3 and DW4 to prove that he has got
acquittance with Chandrasekar and the Chandrasekar had quarreled and
threatened him that he would file cases with the help of the respondent's
cheques, which are in his custody. The respondent has also lodged a complaint
against Chandrasekar by alleging that the Chandrakumar had quarreled with him
and during that time, the appellant's husband whose alias name Ruby was also
present there. In fact, FIR was registered in this regard has been marked as
Ex.D1 and in the FIR, it is seen that the Chandrasekar and the appellant's
husband have been added as accused. So the respondent has produced
documents to show the acquittance between the appellant's husband and his
erstwhile business partner, Chandrasekar.
16. As per the complaint, the complainant would know the
respondent only through her husband and her husband is known to
Chandrasekar. The respondent would establish the relationship of Chandrasekar
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to the appellant's family, though he could not examine Chandrasekar.
17. As stated already, the standard of proof for rebuttal
contemplated under Section 139 of NI Act is not proof beyond reasonable doubt.
Had the trial Court appreciated the evidence in a holistic fashion, it would have
missed the preponderance probabilities available in favour of the respondent for
rebutting the initial presumption arose in favour of the complainant. The first
appellate Court had properly appreciated the evidence and other circumstances
of the case and had arrived at a conclusion that the cheque has not been given for
any loan availed by the respondent from the complainant.
18. It is needless to state that once the respondent could rebut the
initial presumption then the burden would shift upon the complainant. The
cheque was in fact supported by consideration. But the appellant did not
produce any materials to destabilise the rebuttal proved by the respondent.
Unless the initial presumption arise under Section 139 of NI Act culminates into
conclusive proof, the trial Court is not expected to find the respondent guilty for
the offence under Section 138 of NI Act. But the trial Court did not appreciate
the above position of law properly and that was rectified by the first appellant
Court and consequently, the Judgment of the trial Court was set aside.
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19. As I find no error of understanding or explanation on the part of
first appellate, the matter does not require any interference.
20. Accordingly,
● this Criminal Appeal stands dismissed;
● the judgment of acquittal passed by the learned II Additional
Sessions Judge, Trichirappalli in Crl.A.No.05 of 2016, dated
18.10.2016, is confirmed.
09.06.2025
NCC :Yes/No
Index :Yes/No
Internet:Yes/No
PNM
To
1.The II Additional Sessions Judge, Trichirappalli
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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R.N.MANJULA,J.
PNM
JUDGMENT IN
09.06.2025
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