Madras High Court
K.B. Raju vs K.Asokan on 18 March, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
.Crl.A.No.653 of 2012.
IN THE HIGH Court OF JUDICATURE AT MADRAS
DATED : 18.03.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No.653 of 2012
--
K.B. Raju .. Appellant
Versus
K.Asokan .. Respondent
Criminal Appeal filed under Section 378 of Cr.P.C., to set aside the
Judgment dated 30.07.2012 made in C.C.No.765 of 2011 passed by the
learned Judicial Magistrate (Fast Track Court), Vellore, Vellore District.
For Appellant : Mr. T.M. Hariharan
For Respondent : Mr. A. Sasidharan
JUDGMENT
This Criminal Appeal has been filed to set aside the Judgment dated
30.07.2012 passed in C.C. No.765 of 2011 on the file of the learned Judicial
Magistrate (Fast Track Court), Vellore, by which the Respondent/Accused was
acquitted of the offence under Section 138 to 142 of The Negotiable
Instruments Act.
2. The complaint under Section 138 to 142 of The Negotiable
Instruments Act, in C.C. No. 765 of 2011 was filed by the
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Appellant/Complainant complaining that the Respondent/Accused had
borrowed Rs.2 lakhs from him and also executed a promissory note along with
one Mohan, Kandipedu Village. The Respondent/Accused promised to repay
the loan amount with interest at the rate of 36% per annum. On demand the
Accused had issued a cheque dated 08.11.2011 for Rs.4 lakhs and on its
presentation, the cheque was dishonoured by his bankers – The Tamil Nadu
Mercantile Bank Limited, Vellore. The complainant issued a legal notice dated
11.11.2011 calling upon the Respondent/Accused to repay the cheque amount.
On receipt of the notice dated 11.11.2011, the Respondent/Accused sent a reply
dated 19.11.2011 repudiating the averments contained in the notice dated
11.11.2011. Thereafter, the complainant has filed the complaint complaining
that the Respondent/Accused issued the cheque for a legally enforceable debt
and liability but it was dishonoured on it's presentation.
3. Before the trial Court, the Appellant/Complainant examined
himself as P.W-1 and Ex.P-1 to Ex.P-9 were marked. The Respondent/Accused
has neither examined any witness nor marked any document. The trial Court,
on appreciation of the deposition of P.W-1/ Complainant and on perusal of the
oral and documentary evidence, held that the amount said to have been
borrowed by the Respondent/Accused is Rs.2 lakhs, but the cheque was said to
have been issued for Rs.4( Uploaded
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25/03/2025 chequepm ) is more than the borrowed
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amount, the provisions under Section 138 of The Negotiable Instruments Act
are not attracted. Accordingly, the trial Court acquitted the
Respondent/Accused by the judgment dated 30.07.2012.
4. Aggrieved by the judgment of acquittal dated 30.07.2012 passed in
C.C. No. 765 of 2011, the instant Criminal Appeal is filed by the
Appellant/Complainant.
5. When this Criminal Appeal No. 653 of 2012 was listed for
hearing, this Court, by Judgment dated 18.01.2018, on the basis of the
judgment of the Full Bench of this Court in the case of Shanmuga Sundaram
vs. S. Mani reported in (2017) 3 MLJ (Crl.) 591 transferred this Appeal to the
concerned Court of Principal District and Sessions Judge and directed the
Registry to transmit the entire case records to the concerned Principal Sessions
Court. Subsequently, the case was once again re-transferred to this Court and
accordingly, it was taken up for hearing.
6. The learned Counsel for the Appellant/Complainant submitted that
the Respondent/Accused has not denied that a promissory note was executed
for Rs.2 lakhs towards the amount borrowed by him. The Respondent/Accused
promised to pay interest (at
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commercial in nature. As the Respondent/Accused failed to pay the interest
amount for a long time, the Appellant/Complainant demanded the amount
together with interest. The interest alone works out to Rs.2,04,000/- and
therefore, towards principal and interest, a cheque for a sum of Rs.4 lakhs was
issued by the Respondent/Accused. The learned Judicial Magistrate made an
observation that the Appellant/Complainant failed to maintain accounts for
receipt of interest. Even assuming that the Appellant/Complainant did not
maintain any such record, it will not be a ground for the Court below to pass
the judgment of acquittal. The Respondent/Accused did not deny the issuance
of the cheque. The Respondent/Accused did not step into the witness box to
prove the contrary. While so, the trial Court ought to have allowed the
complaint filed by the Appellant/Complainant. The judgment of acquittal is
therefore perverse and it is liable to be interfered with by this Court.
7. The learned Counsel for the Appellant/Complainant further
submitted that, in the statutory notice issued by the Appellant/Complainant to
the Respondent, nowhere it was stated that the Accused had paid part of the
claim. In the absence of such specific averments in the statutory notice, the trial
Court ought to have considered that the cheque was issued towards principal as
well as interest. Therefore, the judgment of acquittal by the learned Judicial
Magistrate, Fast Track Court,
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on: 25/03/2025 perverse.
pm ) The learned Trial Judge
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misdirected himself and acquitted the Accused. The Complainant had received
cheque for Rs.4 lakhs from the Respondent/Accused which he deposited into
his bank account. When the cheque was dishonoured, a statutory notice was
issued. Thus, the initial presumption has been raised by the
Appellant/Complainant as required under Section 139 of the Negotiable
Instruments Act and it was not properly appreciated by the learned trial Judge.
In any event, the judgment of acquittal is contrary to law and perverse. The
learned Counsel for the Appellant/Complainant therefore prayed for allowing
this Criminal Appeal
8. Per contra, the learned Counsel for the Respondent/Accused, by
way of reply, submitted that even in the complaint, it was stated that the
Respondent/Accused received Rs.2 lakhs as loan. When the loan was given,
and on what date the promissory note was executed are not stated in the
complaint. Further, it is the contention of the learned Counsel for the
Respondent/Accused that in the cross-examination, the Appellant/
Complainant, as P.W-1, had clearly stated that he was not maintaining the
accounts to show to whom he had lent the amount and what was the amount
lent to various persons. In the absence of specific documents regarding lending
of the amount by the Complainant, the presumption under Section 139 of the
Negotiable Instruments (Act,
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on: 25/03/2025 bepm )invoked in favour of the
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Complainant. In any event, the loan was for Rs.2 lakhs but the cheque was
obtained for Rs.4 lakhs. The trial Court, rightly held that the cheque amount
cannot be more than the borrowed amount. The Appellant/Complainant also
did not say that the cheque was towards the principal and interest. While so,
the learned Trial Judge is wholly justified in acquitting the
Respondent/Accused. Therefore, the learned Counsel for the
Respondent/Accused prayed for dismissal of this Appeal.
Point for consideration:
Whether the Judgment of acquittal passed by the learned
Judicial Magistrate (Fast Track Court), Vellore in C.C.No.765
of 2011 dated 30.07.2012 is to be set aside as perverse?
9. Heard the learned Counsel for the Appellant/Complainant and the
learned Counsel for the Respondent/Accused. Perused the judgment of
acquittal rendered by the learned Judicial Magistrate, Fast Track Court, Vellore,
in C.C. No. 765 of 2011, dated 30.07.2012.
10. At the outset, it must be stated that the complaint filed by the
Complainant is bereft of material particulars. In the complaint, the
Complainant has not stated as to when and where the amount was paid to the
Respondent, whether the ( Uploaded
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04:00:57 way
) of cash or by any other
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mode. Even the date of promissory note has also not been mentioned in the
complaint. The complaint is also completely absent as to whether, after receipt
of the borrowed amount, the Respondent has paid any amount towards interest
or not. It is simply stated that the cheque was dated 08.11.2011. In this
Appeal, it is contended on behalf of the Complainant that interest alone is
worked out to more than Rs.2 lakhs and the cheque was issued towards
principal and interest. Even in the Appeal, it was not stated as to whether any
interest was paid by the Respondent and what is the period for which the
interest has to be paid by the Respondent. Thus, the complaint as well as the
present Appeal are bereft of any material particulars.
11. For the notice sent by the Complainant on 11.11.2011, the
Respondent/Accused has issued a reply notice on 19.11.2011 stating that he
borrowed some amount in the year 2006 for which blank promissory note and
blank cheque was given to the complainant as security. However, the loan
obtained from Complainant was repaid to him in the year 2006 itself and the
account was closed in the year 2006 itself. When the complainant was asked to
return the promissory note and cheque he replied that he misplaced them and
that as soon as he traced them, he will return the same, and thereby, demolished
the case projected by the Appellant/Complainant. Further, on perusal of the
deposition of P.W-1, he has stated that the Respondent borrowed Rs.2 lakhs,
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.Crl.A.No.653 of 2012.
the cheque was issued for Rs.4 lakhs. It is not his case that the cheque is
towards the principal and interest. If it is so, what was the period for which
interest has to be paid by the Respondent/Accused is unknown.
12. On perusal of the Judgment passed by the learned Judicial
Magistrate, Fast Track Court, Vellore, the learned Judicial Magistrate observed
that in cross-examination of P.W-1, he had stated that he does not maintain
accounts regarding the names of the borrower and details of the borrowed
money and interest collected. If that is the admission of the Complainant/ P.W-
1, it is futile to contend that the total amount payable by the Respondent to the
tune of Rs.4 lakhs is towards principal and interest. It was stated that the loan
involves 36% interest. If that be the case, the Complainant ought to have
maintained and produced records to show the transaction involved in this case.
In such circumstances, the learned Judicial Magistrate, Fast Track Court,
Vellore on appreciation of evidence, rightly dismissed the Complaint thereby
acquitting the Accused.
13. On perusal of the original records, it is found that the Complainant
had only stated that the Accused borrowed Rs.2,00,000/-. He had not clearly
stated the date of borrowal. In the statutory notice issued by the Complainant
under Ex.P-7 also, he had( Uploaded
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Rs.2,00,000/-. The notice states that the amount was borrowed for the purpose
of fabrication business of the Accused admitting to repay along with 36%
interest per annum on demand. The second Paragraph of the notice states that
the Cheque bearing No.443563 drawn on Andhra Bank, Vellore, was issued by
the Accused on 08.11.2011 for Rs.4,00,000/- towards partial discharge of the
promissory note debt due to the Complainant. In the reply notice under Ex.P-9,
the Accused had disputed the claim of the Complainant. It is the contention of
the Accused that he had repaid the entire debt in 2006 itself. When he sought
return of the promissory note and the cheque furnished by him as security
towards the loan availed by him, the Complainant stated that he will return it
after he traces it out. He claimed an excuse for missing of the documents viz.,
promissory note and cheque. It is the claim of the Accused that he had repaid
the entire amount. Therefore, the Complainant ought to have been clear in his
Complaint, the date of execution of the promissory note by the Accused and the
claim of interest calculated by the Complainant.
14. As per the provisions of Section 138 of Negotiable Instruments
Act, as far as the offence under Section 118 of Negotiable Instruments Act is
concerned, the initial burden is on the Complainant that the Negotiable
Instrument was made or drawn for consideration, and that every such
instrument, when it has been
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accepted, indorsed, negotiated or transferred, was
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.Crl.A.No.653 of 2012.
accepted, indorsed, negotiated or transferred for consideration. The Section
118 of the Negotiable Instruments Act is extracted hereunder:-
“118. Presumptions as to negotiable instruments.—Until the contrary
is proved, the following presumptions shall be made:—
a) of consideration —that every negotiable instrument was made
or drawn for consideration, and that every such instrument, when it has
been accepted, indorsed, negotiated or transferred, was accepted,
indorsed, negotiated or transferred for consideration;
b) as to date —that every negotiable instrument bearing a date
was made or drawn on such date;
c) as to time of acceptance —that every accepted bill of exchange
was accepted within a reasonable time after its date and before its
maturity;
d) as to time of transfer —that every transfer of a negotiable
instrument was made before its maturity;
e) as to order of indorsements —that the indorsements appearing
upon a negotiable instrument were made in the order in which they
appear thereon;
f) as to stamps —that a lost promissory note, bill of exchange or
cheque was duly stamped;
g) that holder is a holder in due course —that the holder of a
negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful
owner, or from any person in lawful custody thereof, by means of an
offence or fraud, or has been obtained from the maker or acceptor
thereof by means of an offence or fraud, or for unlawful consideration,
the burden of proving that the holder is a holder in due course lies upon
him.”
15. For the claim made by the Complainant in the notice under Ex.A-7
which was disputed by the Accused under Ex.A-9, the Complainant ought to
have specifically stated the
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date from which the interest is calculated because
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he had used the word for partial discharge of the debt in the notice under Ex.A-
7. When the principal amount is Rs.2,00,000/-, towards partial discharge of the
debt is Rs.4,00,000/-, then the Complainant ought to have furnished details of
the calculation of the interest by furnishing the books of accounts maintained
by him regarding money lending. In his cross-examination, P.W-1 was unable
to furnish books of accounts regarding the persons to whom he had advanced
loans, dates of advancing loans and dates of repayment, either partially or fully.
When the Complainant clearly states that Rs.4,00,000/- was paid by cheque by
the Accused towards partial discharge of the loan, then he is duty bound to
prove the claim of Rs.2,00,000/- as loan, how it is Rs.4,00,000/- towards
principal and interest. Only when he furnishes books of accounts then the
claim made by him can be considered as the Accused had not paid the dues.
When the Complainant during his cross-examination was unable to satisfy the
Court regarding the principal, regarding the interest over the principal from the
date of borrowal, from the date of executing promissory note by the Accused,
the initial burden, as per Section 118(g) of the Negotiable Instruments Act was
on the Complainant. He failed to establish the initial burden. When he
establishes the initial burden, it shifts on the Accused under Section 139 of
Negotiable Instruments Act to discharge the rebuttal burden as per the ruling of
the Hon'ble Supreme Court in the case of Rangappa Vs. Sri Mohan reported in
(2010) 11 SCC 441 and (Krishna
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pm ) Vs. Dattatraya G.Hedge
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reported in (2008) 4 SCC 54. To discharge the rebuttal burden, the Accused
need not enter the witness box, it is enough the Accused is able to establish his
defence through preponderance of probabilities. The burden to prove the
Charge against the Accused on the Prosecution is greater whereas the burden
on the Accused towards rebuttal evidence is enough if the Accused is able to
probablise the defence of the Accused through cross-examination of the
Prosecution Witnesses. The burden to discharge rebuttal evidence is not as
equal to that of the burden on the Prosecution. Here, the Accused was able to
satisfy the Court by preponderance of probabilities that the Complainant is not
maintaining account. When he is not maintaining account, he will not be able
to establish the fact that the Accused owed Rs.4,00,000/- on the date of
issuance of cheque towards principal amount of Rs.2,00,000/- and interest at
the rate of 36% per annum from the date of execution which is not available
before the Court to calculate the interest from which day. These details are not
available in the notice as well as in the Complaint to indicate that the rate of
interest is calculated at the rate of 36%. If what had been claimed in the notice
as per Ex.P-7 is to be accepted, it attracts the provisions of the Tamil Nadu
Prohibition of Charging Exorbitant Interest Act which is a punishable offence
and which cannot be enforced through a Court of law. Therefore, the learned
Judicial Magistrate, Vellore rejecting the claim of the Complainant who is the
Appellant before this Court
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proper appreciation of evidence.
16. In the case of V.Sejappa Vs. State reported in 2016 (12) SCC 150,
when the Appellate Court re-assessed the evidence and it was found that the
trial Court had assessed evidence as per the Provisions of the Indian Evidence
Act, the Appellate Court, even if it arrive at a different conclusion shall not
reverse the finding of the trial Court and thereby set aside the Judgment of the
trial Court. Under those principles, the finding of the learned Judicial
Magistrate, Vellore acquitting the Accused is found well-reasoned Judgment
which does not warrant interference of this Court even otherwise the learned
trial Judge had the advantage of observing demeanour of witnesses and the
Accused which is not available to the High Court sitting in Appeal as Appellate
Court. Under those circumstances, the High Court shall not reverse the finding
of acquittal. The High Court shall be slow on reversing the finding of trial
Court. In the light of the above ruling, the learned Judicial Magistrate in his
Judgment, acquitting the Accused is found proper.
17. The learned Judicial Magistrate, in the judgment, which is
impugned in this Appeal, placed reliance on the decision of this Court in
Acq.D.C.C 801 “The Negotiable Instruments Act, 1881, Section 138 wherein
it was held that if the cheque is more than the amount of the debt due, Section
138 cannot be attracted. In this case, the borrowed amount was Rs.2 lakhs, but
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.Crl.A.No.653 of 2012.
the cheque was obtained for Rs.4 lakhs. The Complainant, in his complaint as
well as in his deposition as P.W-1 had not explained how the Respondent is
liable to pay Rs.4 lakhs, what was the interest component, the period for which
interest is paid etc., Under those circumstances, the Judgment of the learned
Judicial Magistrate, Fast Track Court, Vellore is found proper. This Appeal
lacks merits and is to be dismissed.
18. In the light of the above discussion, the point for consideration is
answered in favour of the Respondent/Accused and against the
Appellant/Complainant. The Judgment of the learned Judicial Magistrate, Fast
Track Court, Vellore in C.C.No.765 of 2011, dated 30.07.2012 is found proper
and the same is to be confirmed.
In the result, this Criminal Appeal is dismissed. The Judgment of the
learned Judicial Magistrate, Fast Track Court, Vellore in C.C.No.765 of 2011,
dated 30.07.2012 is confirmed.
18.03.2025
dh
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-speaking Order
To
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.Crl.A.No.653 of 2012.
1. The Judicial Magistrate,
Fast Track Court,
Vellore, Vellore District.
2. The Section Officer,
Criminal Section,
High Court, Madras.
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.Crl.A.No.653 of 2012.
SATHI KUMAR SUKUMARA KURUP, J
dh
Judgment in
Criminal Appeal No.653 of 2012
18.03.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 04:00:57 pm )
