Madras High Court
A.Gubendran vs D.Nainar Mohammad on 5 June, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.No.139 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.06.2025
CORAM:
THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.139 of 2012
A.Gubendran ...Appellant
Vs.
D.Nainar Mohammad ...Respondent
PRAYER: Criminal Appeal filed under Section 378(4) of Criminal
Procedure Code, to allow this Criminal Appeal by setting aside the Judgment
dated 10.10.2011 in C.C.No. 862 of 2010 on the file of Judicial Magistrate,
Seergazhi.
For Appellant : Mr.M.R.Sivakumar
For Respondent : No appearance
ORDER
This appeal is filed by the complainant who filed the private complaint
under Section 200 of the Code of Civil Procedure, complaining an offence
under Section 138 of the Negotiable Instruments Act, as against the judgement
of the Judicial Magistrate, Seergazhi dated 10.10.2011 in C.C.No. 862 of
2010.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/06/2025 08:29:25 pm )
2. The case of the complainant is that the complainant advanced a loan
of Rs.1,45,000/- to the accused and in repayment thereof, he issued the subject
matter cheques which were returned with the endorsement "account closed"
and when the complainant issued a notice on 23.03.2010 vide Ex.P4, even
though the accused received vide Ex.P5 acknowledgement card, no reply
whatsoever was given, neither was the amount paid and hence the complaint.
3. During the course of the trial, the complainant examined himself as
P.W.1. and Ex.P1 to P5 were marked. On behalf of the accused, he examined
himself as D.W.1 and Ex.D1 to D14 were marked. It is the defence of the
accused that the cheques in question were left by way of security, since the
accused and the complainant had business transaction, as the accused was
having transaction in the name and style Aleef Traders with the complainant.
They were dealing with dried fish and there were commercial transactions
between them. The Trial Court, after appreciation of evidence, found that
since there is no other documentary proof with reference to the advancement
of loan, since the accused, by cross-examination and also by examining
himself and marking the documents had provided the details of the
commercial transactions and proved to the level of preponderance of
probability that there is a likelihood that the cheque would have been issued
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/06/2025 08:29:25 pm )
as a security, at the time of entering into transactions, the Trial Court believed
the version of the accused and acquitted the accused. Aggrieved thereby, the
present appeal is filed.
4. Heard the learned counsel appearing on behalf of the appellant.
5. Taking this Court through the relevant portions of the judgment, he
would submit that in this case, the accused had categorically admitted his
signature on the cheque. The cheque is validly issued and was duly presented
in the bank. The presumption in law is in favor of the complainant. Once the
signature is not denied, the Trial Court ought to have held that it is issued for
a valid consideration and ought to have convicted the accused. Over and
above the same, when a notice of demand was issued by the complainant, not
even a reply notice was issued by the accused and therefore the Trial Court
ought not to have acquitted the accused.
6. Further, the plea of the accused is that he has left the cheque by way
of security. However, nothing prevented the accused from demanding the
cheques back if he had left the cheques by way of security. At no point of
time, until the cheques were presented and notices were issued and the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/06/2025 08:29:25 pm )
complaint was filed, the accused took any steps to get back the cheque which
he pleads as security. Therefore, he would pray that this Court should upturn
the finding into one of conviction, convict the respondent, and order that the
entire cheque amount be paid to the complainant.
7. I have considered the said submissions made by the learned counsel
for the appellant and perused the material records of the case.
8. Firstly, in this case, in the complaint, not even the particulars as to
when the loan was granted is mentioned. Straightaway in paragraph No. 3, it
is mentioned that the accused issued the cheque in repayment of a loan.
Further, there is no other document that was produced by the complainant in
support of the loan transaction. The entire case of the complainant is on the
presumption. It is settled law that the presumption is rebuttable and the
accused can rebut the presumption and the standard of proof required is
preponderance of probabilities. The trial Court appraised the evidence on
record and after considering Ex.D1 to D14 which are the commercial
transactions, coupled with the finding that when the complainant claims that
ten loads of dried fish were supplied by him and when the accused
demonstrates that only three loads were supplied, the Trial Court found that in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/06/2025 08:29:25 pm )
the backdrop of those transactions there was no probability of a separate loan
transaction and that the case of the accused is more probable and rendered its
finding. When the Trial Court appraises the evidence and renders a finding of
acquittal, unless the same is perverse in nature, this Court, in an appeal against
acquittal, will not interfere and upturn the said finding. In view thereof, I am
unable to accept the submissions made by the learned counsel for the
appellant on the sole ground of the accused had not issued a reply notice to the
demand notice issued by the complainant.
9. In view thereof, finding no merits, this Criminal Appeal stands
dismissed. No costs.
05.06.2025
Neutral Citation: Yes/No
nsl
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/06/2025 08:29:25 pm )
D.BHARATHA CHAKRAVARTHY, J.
nsl
To
The Judicial Magistrate,
Seergazhi.
05.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/06/2025 08:29:25 pm )
