Madras High Court
James @ James Swornbas vs S.Krishnamoorthy on 10 June, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.No.139 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.06.2025
CORAM:
THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.139 of 2010
James @ James Swornbas ...Appellant
Vs.
S.Krishnamoorthy ...Respondent
PRAYER: Criminal Appeal filed under Section 378(4) of Criminal
Procedure Code, to set aside the judgement dated 15.09.2009 passed in
C.C.No. 5384 of 2007 by the learned VII Metropolitan Magistrate, George
Town, Chennai – 01, ordering the acquittal of the respondent accused, to
convict and sentence him in accordance with law and be further pleased to
direct the respondent accused to pay the appellant- complainant compensation
in the manner provided in Section 357 of Cr.P.C.
For Appellant : No appearance
For Respondent : No appearance
ORDER
This appeal is filed challenging the judgment of the VII Metropolitan
Magistrate, George Town, Chennai-01, made in C.C. No. 5384/2007, dated
15.09.2009, whereby the respondent was acquitted of the offence under
Section 138 of the Negotiable Instruments Act, 1881.
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2. The case of the appellant/complainant is that he entered into a
construction agreement with the respondent and in discharge of his liability,
the respondent issued two cheques: cheque bearing No. 933326 dated
05.02.2007 for a sum of Rs. 25,000/-, and cheque bearing No. 933335 dated
07.02.2007 for a sum of Rs. 4,00,000/-, which were marked as Ex. P1 and P2.
Upon presentation for collection, the cheques were returned dishonoured for
insufficient funds. Thereafter, the complainant issued a legal notice, Ex. P5,
and filed the complaint.
3. The defence contended that although a contract was entered into, the
complainant left it halfway due to a dispute between the complainant and the
accused. It was stated that thereafter, one Sivalingam was engaged as a
contractor and the works were completed. The cheques, which were left with
the complainant as security during the transaction, were misused by the
complainant.
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4. In support of the case, the complainant examined himself as P.W.1,
and Ex.P1 to P6 were marked. On behalf of the defence, Ex. D1 and D2 were
marked. The subsequent contractor was examined as D.W.1, and the accused
examined himself as D.W.2.
5. After appraising the evidence adduced by both sides, the Trial Court
found that the complainant, in both the complaint and chief examination,
never mentioned that he had already lodged a police complaint or that a
panchayat was held. The facts that the works remained incomplete and that
another contractor was later engaged to complete the work were all not
mentioned.
6. While the complainant admitted these facts only during cross-
examination, the Court held that the accused had rebutted the presumption and
also let in contra evidence to dispute the liability. Accordingly, it concluded
that the complainant had not proved beyond reasonable doubt that a liability
existed. The Trial Court thus acquitted the accused. In view of said findings,
which are based on the appraisal of evidence on record, this Court, in an
appeal against acquittal, cannot upturn the findings unless the same is
perverse in nature.
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7. In view thereof, finding no merits, the appeal stands dismissed. No
costs.
10.06.2025
Neutral Citation: Yes/No
nsl
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D.BHARATHA CHAKRAVARTHY, J.
nsl
To
The VII Metropolitan Magistrate,
George Town,
Chennai – 01.
10.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 04:10:35 pm )
