Madras High Court
S.Karthikeyan vs S.Selvi on 5 June, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.No.747 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2025
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.747 of 2011
S.Karthikeyan ... Appellant
Vs.
S.Selvi ... Respondent
PRAYER : Criminal Appeal filed under Section 378 of Code of Criminal
Procedure, pleased to set aside the judgment dated 10.08.2011 passed in
C.C.No.443 of 2010 on the file of the Court of the Judicial Magistrate No.2,
Coimbatore, acquitting the respondent herein.
For Appellant : M/s.K.Govi Ganesan
For Respondents : Not ready in Notice
JUDGMENT
This appeal is directed against the judgment of the learned Judicial
Magistrate No.2, Coimbatore, in C.C.No.443 of 2010 dated 10.08.2011. By the
said judgment, the respondent herein was acquitted for the offence under Section
138 of Negotiable Instruments Act.
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2.Heard Mr.K.Govi Ganesan, the learned counsel for the appellant.
3.The learned counsel for the appellant would submit that the complainant
is involved in selling of spare parts under the name and style of M/s.Extreme
Computers. While so, the accused who was the owner of a Commercial Complex
promised to let out a shop to the complainant. Accordingly, part advance amount
was given by the complainant to the accused as cash and the balance by way of a
cheque. However, the accused did not rent out the said premises and agreed to
return the advance amount of Rs.4,00,000/- along with interest. Accordingly, in
discharge of the said liability, the subject matter cheque was issued for a sum of
Rs.4,13,500/- which upon presentation with the bank returned, dishonoured and
hence the complaint. The trial Court as such ought not to have acquitted the
accused especially in the absence of any contra evidence on behalf of the accused.
The complainant is entitled for the benefit of presumption.
4.I have considered the said submission made by the learned counsel for
the appellant and perused the material records of the case.
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5.The trial Court after considering the case of the complainant had
considered the fact that the son of the accused was conducting a business under
the name and style of M/s.Limbix Infotech and Limbix Technology and there has
been transactions between the complainant and the said concern. In the same, the
accused was also a director and therefore, a cheque was issued by him with
reference to the said transactions. Since, it is not even mentioned as to on what
date the amount was given by the complainant and no rental agreement receipt
was also given, after appraising the evidence in detail, the trial Court has come to
a finding, that to the level of preponderance of probability, the accused has
rebutted the presumption. Once the same has been rebutted in the absence of any
further proof relating to the payment of advance or the transaction relating to the
leasing out of the shop, the trial Court has held that the complainant has not
proved the case and acquitted the accused. A detailed appraisal of evidence has
been undertaken by the trial Court by considering the various documents that
were marked as exhibits, especially Ex.A7 and also the reply notice and the cross
examination of the complainant and arrived at a finding that there seems to be
other commercial transaction between the parties. However, there does not seem
to be any evidence relating to the leasing out of the shop. This Court in an appeal
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against acquittal cannot upturn the findings unless the finding is perverse in
nature. In view thereof, finding no merits, this Criminal Appeal is dismissed.
05.06.2025
ep
Neutral citation : Yes/No
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D.BHARATHA CHAKRAVARTHY, J.
ep
To
The Judicial Magistrate No.2, Coimbatore.
05.06.2025
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