Madras High Court
R.Vasanthan vs V.K.Santhi on 13 March, 2025
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl MP(MD)No.116 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl A(MD)No.116 of 2022
and
Crl MP(MD)No.6213 of 2024
R.Vasanthan ... Appellant / Complainant
Vs.
V.K.Santhi ... Respondent/ Accused
PRAYER: Appeal filed under Section 378 of the Code of Criminal Procedure,
to call for the records relating to the judgment dated 13.07.2018 passed in
STC.No.383 of 2018 on the file of the Fast Track Court (Magistrate Level),
Nagercoil acquitting the respondent / accused under Section 138 of the
Negotiable Instruments Act and allow the above appeal.
For Appellant : Mr.R.Murugan
For Respondent : Mrs.D.Saranya
Legal Aid Counsel
JUDGMENT
The appellant / complainant has filed a private complaint as against
the respondent / accused before the Fast Track Court No.II (Magisterial Level),
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Nagercoil, for the offence under Section 138 of the Negotiable Instruments Act.
The complaint was tried in STC No.383 of 2018 and it was dismissed by the
learned Judicial Magistrate, Fast Track Court No.II, Nagercoil by judgment
dated 13.07.2018. As against the judgment of the trial Court, the complainant
has filed an appeal before the Principal Sessions Judge, Kanyakumari District
and the same was transferred to this Court pursuant to the orders of the Hon'ble
Full Bench and listed for final hearing.
2.For sake of convenience the parties are referred herein, as per their ranks
before the trial Court.
3.The case of the complainant is that on 27.02.2012 the accused borrowed
a sum of Rs.1,00,000/- (Rupees one lakh) from the complainant promising to
repay the same within three months and the accused issued a cheque bearing
No.0977032 of her account at State Bank of India, Pazhavoor Branch dated
27.09.2012 instructing the complainant to present the cheque and collect the
amount. On 28.09.2012 the complainant presented the cheque in Syndicate
Bank, Nagercoil branch for collection. But the cheque was dishonoured and
returned on 10.10.2012 as funds insufficient. Therefore, on 18.10.2012 the
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complainant sent a legal notice to the accused intimating the dishonour of
cheque. Though the accused received the notice, she had not sent any reply.
Therefore he has instituted proceedings under Section 138 of the NI Act.
4.The learned counsel for the appellant / complainant submits that
while sending notice to the accused, the amount was wrongly mentioned as
Rs.25,000/- instead of Rs.1,00,000/- and the same was taken as a ground by the
trial Court to dismiss the complaint. According to him, there is no correction,
addition or omission in the cheque Ex.P1. The cheque Ex.P1 was issued for a
sum of Rs.1,00,000/- and it was presented for collection before his banker on
28.09.2012 and it was returned as 'insufficient funds' on 10.10.2012.
The complainant had sent a legal notice calling upon the accused to repay the
cheque amount by notice dated 18.10.2012 and the accused received the notice
on 19.10.212. However she has failed to pay the amount and has not sent any
reply to the said notice. Therefore according to the learned Counsel the essential
ingredients for constituting the offence under Section 138 of the NI Act have
been proved sufficiently by the complainant and the presumption is in favour of
the complainant as per Section 139 of the NI Act.
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5.The learned Counsel for the respondent / accused submits that the
presumption mandated under Section 139 of the NI Act, includes the
presumption of existence of legally enforceable debt or other liability.
In the event the cheque has been returned by the bank unpaid, the payee or the
holder of the cheque in due course may make demand for payment of the said
amount of money by giving notice in writing to the drawer of the cheque within
30 days as required under Section 138(c) of the NI Act. The legal notice dated
18.10.2012 has been sent demanding Rs.25,000/- as the amount borrowed by
the accused from the complainant. Though the complainant claimed that it was
mistakenly mentioned as Rs.25,000/-, no rectification notice was sent by the
complainant. The complainant PW1 has also admitted that he has wrongly
mentioned the amount as Rs.25,000/- in the legal notice Ex.P3. Therefore,
according to the learned Counsel for the accused, the complainant has failed to
comply with the requirements as required under Section 138 (c) of the NI Act
and that defect was considered in the light of the Hon'ble Supreme Court in
Suman Sethi Vs Ajay K.Churiwal (Criminal Appeal No.113 of 2000) and
therefore, the trial Court has acquitted the respondent / accused. According to
the learned Counsel for the accused, the accused has borrowed a sum of
Rs.25,000/- from the complainant and issued seven cheques and one signed
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stamp paper in favour of the complainant as security. In respect of one of the
cheques used by the complainant, the proceedings in STC No.382 of 2018 was
initiated and wherein the complainant has projected that on 17.06.2012 the
accused has received a sum of Rs.50,000/- and issued post dated cheque ie.,
dated 17.09.2012. This complaint has been filed in STC.No.383 of 2018 as if
the accused borrowed another sum of Rs.1,00,000/- on 27.06.2012, for which
this accused has issued the cheque Ex.P1 dated 27.09.2012. The accused has
taken a specific stand in the notice issued in STC No.382 of 2018. Therefore,
according to the learned counsel for the accused, there is no legally enforceable
debt for this Ex.P1 and for the transaction in STC No.382 of 2018, this
complaint in STC No.383 of 2018 was filed with the cheque given as security
for the loan transaction in STC No.382 of 2018.
6.This Court considered the rival submissions and perused the materials
placed on record.
7.Before dwelling into the merits of the case, since the appeal is filed as
against an order of acquittal, it is necessary to bear in mind the principles
governing the appeal against acquittal, as laid down by the Hon'ble Supreme
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Court in V.Sejappa v. State [(2016) 12 SCC 150], wherein, the Hon'ble
Supreme Court has followed its own decision in Muralidhar v. State of
Karnataka [(2014) 5 SCC 730]. The guidelines issued in the said decision are
extracted hereunder:
“23. ... ... (i) There is presumption of innocence in favour of
an accused person and such presumption is strengthened by the order
of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the appeal against
acquittal;
(iii) Though, the powers of the appellate court in
considering the appeals against acquittal are as extensive as its
powers in appeals against convictions but the appellate court is
generally loath in disturbing the finding of fact recorded by the trial
court. It is so because the trial court had an advantage of seeing the
demeanour of the witnesses. If the trial court takes a reasonable view
of the facts of the case, interference by the appellate court with the
judgment of acquittal is not justified. Unless, the conclusions reached
by the trial court are palpably wrong or based on erroneous view of
the law or if such conclusions are allowed to stand, they are likely to
result in grave injustice, the reluctance on the part of the appellate
court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation
and re-evaluation of the evidence is inclined to take a different view,
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interference with the judgment of acquittal is not justified if the view
taken by the trial court is a possible view. The evenly balanced views
of the evidence must not result in the interference by the appellate
court in the judgment of the trial court."
8.In yet another decision in the case of Chandrappa Vs State of
Karnataka [(2007) 4 SCC 415], the Hon'ble Supreme Court has laid down the
following general principles regarding powers of the appellate Court while
dealing with an appeal against an order of acquittal:
“(1) An appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts on
limitation restriction or condition on exercise of such power and an
appellate Court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and
compelling reaons', good and sufficient grounds', 'very strong
circumstances', distorted conclusions', 'glaring mistakes', etc are not
intended to curtail extensive powers of an appellate Court in an
appeal against acquittal. Such phraseologies are more in the nature
of 'flourishes of language' to emphasise the reluctance of an
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appellate Court to interfere with acquittal than to curtail the power
of the Court to review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved guilty by
a competent Court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate Court should not disturb the
finding of acquittal recorded by the trial Court.”
9. In this case the cheque Ex.P1 was issued by the accused for a sum of
Rs.1,00,000/-. The instrument Ex.P1 was admitted by the accused that the
cheque belongs to her. She has also not disputed the signature found in ExP1,
however she has disputed the contents of Ex.P1 that the contents of the cheque
are filled up in different inks. Even assuming the contents are filled up, it has to
be presumed that the instrument was given in discharge of legally enforceable
debt. The cheque presented for collection was returned as insufficient funds.
The complainant has issued legal notice Ex.P.3, calling upon this accused to
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make payment, as required under Section 138 (c) of the NI Act. Section 138(c)
of the NI Act reads as under :
“138. Dishonour of cheque for insufficiency, etc., of funds in
the account.—
Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of
money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Act, be
punished with imprisonment for a term which may be extended
to two years, or with fine which may extend to twice the amount
of the cheque, or with both:Provided that nothing contained in
this section shall apply unless—
.... ... ...
(c)the drawer of such cheque fails to make the payment
of the said amount of money to the payee or, as the case may be,
to the holder in due course of the cheque, within fifteen days of
the receipt of the said notice.”
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10.The condition required under Section 138(c) of the NI Act is that
the notice must be issued for the said amount of the instrument. Admittedly
notice Ex.P3 in this case was issued demanding Rs.25,000/-, whereas the
instrument has the value of Rs.1,00,000/-. The complainant has stated in the
complaint that it has been mistakenly mentioned as Rs.25,000/- instead of
Rs.1,00,000/-. However this mistake has been corrected in the complaint alone,
but has not been corrected by issuing a rectified legal notice as required under
Section 138(c) of the NI Act.
11.The copy of the complaint in STC No.383 of 2018 dated 05.12.2012 is
also placed before this Court. It appears that this mistake of amount in Ex.P3 is
not due to oversight, it was also reflected in the complaint filed in STC No.383
of 2018. The complainant in his complaint has stated that the accused received a
sum of Rs.25,000/- on 27.06.2012 and issued this cheque Ex.P1 on 27.09.2012
in discharge of the said amount. The said amount of Rs. 25,000/- is mentioned
both in numerical and in letters in the complaint. However, the amount
mentioned both in numerical and letters, have been corrected.
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12.The presumption under Section 138 of NI Act is a rebuttable one.
If it is rebutted by the accused, the burden shifts on the complainant.
The accused can rebut the presumption by preponderance of probabilities.
The trial Court has noted that apart from this complaint, the complainant has
also filed another complaint as against the accused in STC No.382 of 2018.
In the said complaint the accused has taken a defence that certain blank cheques
have been issued by her as security for the loan availed from the complainant in
STC No.382 of 2018. The petitioner has also pointed out the difference in the
inks used in ExP1 and the conduct of the complainant in lending money of
Rs.50,000/- on 17.06.2012 by receiving a cheque bearing No.0977035 and
lending further amount of this case on 27.06.2012 based on a post dated cheque
No.0977032 ie., 27.09.2012. Therefore, the accused has raised a doubt as to the
amount which can be legally enforceable and there is no demand for the
complaint sum of Rs.1 lakh as required under Section 138(c) of the NI Act.
13.In view of the above discussion this Court is not inclined to entertain
this appeal on the grounds raised by the appellant herein. Accordingly this
criminal appeal is dismissed.
13.03.2025
DSK
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To
The Judicial Magistrate,
Fast Track Court No.II,
Nagercoil.
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B.PUGALENDHI, J.,
DSK
13.03.2025
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