Madras High Court
M.Vijayan vs K.Vijayarathi on 18 June, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Criminal Appeal No.240 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:18.06.2025
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Criminal Appeal No.240 of 2011
M.Vijayan .. Appellant
Vs.
K.Vijayarathi .. Respondent
Prayer: Criminal Appeal filed under Section 378 of Code of Criminal
Procedure, to set aside the order of acquittal imposed in the Judgment dated
22.04.2010 made in C.C.No.186 of 2005 on the file of the Judicial Magistrate
Court, Tambaram, by allowing this Criminal Appeal.
For the Appellant : Mr.D.Muthukumar
for M/s Paul and Paul
For the Respondent : Mr.T.Easwaradhas
Page 1 of 9
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Criminal Appeal No.240 of 2011
JUDGMENT
This Criminal Appeal is directed against the Judgment dated 22.04.2010
in CC No.186 of 2005. By the said Judgment, the Trial Court had acquitted the
respondent accused, of an offence under Section 138 of the Negotiable
Instruments Act, 1881.
2. Heard, Mr.D.Muthukumar, the learned counsel appearing on behalf of
the appellant, and Mr.T.Easwaradhas, the learned counsel appearing on behalf
of the respondent.
3. Mr.Muthukumar, the learned counsel appearing on behalf of the
appellant/complainant submitted that this is a case where the Trial Court
grievously erred in insisting on proof of the complainant’s financial capacity and
further proof of the loan, despite the fact that the complainant’s case ought to be
considered based on the presumption under the Negotiable Instruments Act,
1881. When the signature in the cheque was not denied by the accused and when
the complainant had duly proved the ingredients and also issued a demand
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Criminal Appeal No.240 of 2011
notice, there is a presumption that arises that the cheque was issued only with
reference to an existing legally enforceable debt. In that regard, the Trial Court,
without even considering the fact that the accused has not in any manner
rebutted the presumption, had acquitted the accused only on the ground that the
complainant neither proved his ability nor there is any other proof and that the
date of advancement of the complaint was also not specifically mentioned. The
approach of the Trial Court is directly contrary to the Judgment of the Hon'ble
Supreme Court of India in Kalamani Tex and Another Vs.
P.Balasubramanian1. The learned counsel would specifically rely upon
paragraphs 13 to 15 of the said Judgment.
4. The learned counsel further would submit that the respondent/accused
also filed a Civil Suit in O.S. No.63 of 2005 for the very same contention which
is raised as the defence, and the said suit came to be dismissed. Further, the
respondent also lodged yet another complaint, which was investigated and final
report was filed. After trial, a Judgment was rendered in C.C. No.2137 of 2005
on 01.09.2018 by the learned Judicial Magistrate, Alandur, holding that the case
1 (2021) 5 SCC 283
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Criminal Appeal No.240 of 2011
of the complainant as if the 3rd Respondent therein and the present
complainant/appellant herein had stolen the cheque was false. Therefore, these
additional facts were also to be considered by this Court. Thus, the finding of
the Trial Court is perverse and when the signature in the cheque is not denied by
the accused, and when the complainant has proved that it was issued for a legal
liability, the Trial Court ought to have convicted the respondent/accused.
5. Per contra, Mr.T.Easwaradhas, the learned counsel for the
respondent/accused, would submit that the Trial Court had acquitted the accused
after due appraisal of the evidence. If all the records in respect of the entire
transaction, including the written statement and the findings of the Court in the
connected matter are taken into account, this is not a case for interference by this
Court in an appeal against acquittal.
6. I have considered the rival submissions made on either side and
perused the material records of the case.
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Criminal Appeal No.240 of 2011
7. In this case, the basis on which the Trial Court acquitted the accused is
that the complainant neither adduced any evidence regarding his financial
capacity nor specifically pleaded the date of advancement of the loan in the
complaint, nor did he furnish any evidence in support thereof. It can be seen that
in paragraph No.3 of the present complaint, the complainant stated as follows:
“The Complainant submits that the Respondent had availed
a sum of Rs.3,50,000/- (Rupees three lakhs and fifty thousand only)
from the Complainant for the purpose of discharging her personal
loan transaction.”
When the accused had lodged a complaint with reference to the very same
cheque being stolen by the complainant herein in collusion with the accused
Nos.1 & 2 in the said case namely C.C. No. 2137 of 2005, the following was the
stand taken by the accused No.3, which has been believed by the Trial Court in
that case:
“13.Further, on perusal of evidence of PW1, who stated as
follows:- “vdJ fzth; 3k; vjphpaplk; 6 yl;rk; U:gha;
fld; th';fpf; bfhz;L mjw;fhf vGjpf; bfhLj;jhh;
vd;why; mJ gw;wp vdf;F bjhpahJ/ mjw;fhd cWjp
bkhHpg; gj;jpuj;jpy; 3 \ yl;rk; gzj;jpw;F vd;Dila
fhnrhiyfis vdJ fzth; vGjpf; bfhLj;jjhf
Fwpg;gplg;gl;Ls;sJ vd;why; mJ gw;wp vdf;Fj;
bjhpahJ/ me;j fhnrhiyfspy; xd;Wjhd; jhk;guk;
ePjpkd;wj;jpy; tHf;F nghl;lhh; vd;why; rhpjhd;/” On
perusal of aforesaid evidence, PW1 neither denied nor admitted
loan transaction between the 3rd accused and the PW2 but she
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Criminal Appeal No.240 of 2011
stated that she does not know such fact. But she stated that the
cheque which is subject matter in case in Tambaram court is one of
the cheque in such undertaking.”
8. Thus it can be seen that the case of the defence in the connected case is
that the cheque was issued by the husband of the accused towards partial
discharge of the loan amount of Rs.6 Lakhs that was obtained by him. As a
matter of fact, the Trial Court has also recorded that P.W.1 neither denied nor
admitted the said loan transaction between the parties, whereas in the present
complaint, it is made as if the respondent/accused herein had obtained loan
personally for a sum of Rs.3,50,000/-. While the Trial Court in the said case
rightly found that the case of the accused herein was false. Similarly, as far as
the present complaint is concerned, it is the duty of the complainant to prove his
case. Of course, the complainant is armed with a presumption. When the
accused has cross-examined the complainant and proved to the level of
preponderance of probability that the complainant's case is doubtful, the
statutory presumption under Section 139 of the Negotiable Instruments Act,
1881 stands rebutted. Thereafter, when no further evidence was adduced by the
complainant to establish the advancement of the loan, particularly in light of the
fact that the parties had taken inconsistent stands before different Courts with
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Criminal Appeal No.240 of 2011
respect to the same transaction, the Trial Court, upon proper appreciation of the
evidence and having extended the benefit of doubt to the accused, acquitted the
accused. Such a finding of the Trial Court cannot be said to be perverse or
legally unsustainable.
9. Finally, the learned counsel for the appellant contended that even if the
cheque was issued in discharge of the liability of the accused's husband, the
Trial Court ought to have convicted the accused nonetheless. That may be so,
but the case of the complainant in the instant case is that the accused had
borrowed the loan amount of Rs. 3,50,000/- and once the complainant had come
up with a false version, obviously the complainant's case will also fall flat. Only
after the complainant discharges the initial burden, the accused is expected to
defend.
10. In any event in an appeal against acquittal unless and otherwise this
Court finds that the entire findings are perverse or wholly unsustainable the said
finding cannot be upturned merely because another view can be taken. Only
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Criminal Appeal No.240 of 2011
after the complainant discharges the initial burden, the presumption will arise. In
this case, when the different stands have been taken before different fora in
respect of the loan that is said to have been advanced, this is not a case for
interference of a finding of an acquittal by the Trial Court.
11. Accordingly, finding no merits, this Criminal Appeal stands dismissed.
The Judgment dated 22.04.2010 made in C.C.No.186 of 2005 on the file of the
Judicial Magistrate Court, Tambaram, stands confirmed.
18.06.2025
Neutral Citation : Yes/No
Jer
To
1.The Judicial Magistrate
Tambaram.
2.The Section Officer
VR Section, High Court of Madras.
D.BHARATHA CHAKRAVARTHY, J.
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Criminal Appeal No.240 of 2011
Jer
Criminal Appeal No.240 of 2011
18.06.2025
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