Madras High Court
S.Selvaraj vs A.S.Anthonisamy on 26 March, 2025
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.A.(MD)No.285 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 26.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A.(MD)No.285 of 2025
S.Selvaraj ... Appellant
versus
A.S.Anthonisamy ... Respondent
Criminal Appeal filed under Section 419 of Bharatiya Nagarik
Suraksha Sanhita, to call for the records pertaining to the order passed by the
learned Judicial Magistrate at Fast Track Court, Pattukkottai, Thanjavur
District in S.T.C.No.113 of 2023 dated 30.05.2024, set aside the same and
allow the appeal and to convict the respondent/accused under Section 138 of
the Negotiable Instrument Act to the maximum sentence and to award
compensation twice the cheque amount.
For Appellant : Mr.K.Mahendran
For Respondent : Mr.A.Senthil Kumar
JUDGMENT
The appellant has filed a private complaint under Section 200
Cr.P.C. as against the respondent for the offence under Section 138 of the
Negotiable Instruments Act that the respondent borrowed a sum of Rs.25 lakhs
on 21.12.2015 and a further sum of Rs.16 lakhs on 27.11.2017 for the purpose
of his business and in order to discharge his liability, the respondent has issued
Ex.P3-cheque dated 16.03.2023 for a sum of Rs.25 lakhs. When the cheque
was presented for collection on 16.03.2023, the same was returned as “account
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closed”. Therefore, the appellant has issued a legal notice calling upon the
respondent to pay money as per the cheque/Ex.P3 through his Advocate on
25.03.2023 and the same was received by the respondent on 27.03.2023. The
respondent neither gave any reply to the legal notice dated 25.03.2023 nor paid
the amount. Therefore, the appellant has filed the above complaint before the
learned Judicial Magistrate, Pattukottai, Thanjavur District, for the offence
under Section 138 of the Negotiable Instruments Act and the same was also
tried by the trial Court in S.T.C.No.113 of 2023.
2. During the trial, the appellant examined himself as P.W.1 and he
marked seven documents. On the side of the respondent, no one was
examined. In conclusion of trial, the trial Court found that the respondent has
rebutted the presumption that there is no legally enforceable debt towards the
complainant and the appellant has not approached the Court with clean hands
and therefore, rejected the complaint. As against the Judgment of acquittal
passed by the trial Court in S.T.C.No.113 of 2023 dated 30.05.2024, this
Criminal Appeal has been filed.
3. The learned counsel appearing for the appellant submits that the
respondent has issued a hand slip dated 21.12.20215 for a sum of Rs.25 lakhs
in Ex.P1 and another hand slip dated 27.04.2017 for a sum of Rs.16 lakhs.
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The respondent has also issued a cheque (Ex.P3). The respondent has not
disputed that Ex.P3-Cheque is not that of the respondent and the signature
found in the instrument Ex.B3 does not belong to him and he has not disputed
the document which has been marked by the complainant in Ex.P1 and Ex.P2.
Therefore, according to the learned counsel, once the cheque has not been
disputed by the respondent and when it was presented for collection, it was
returned, the respondent/accused has committed the offence after 15 days from
the date of receipt of notice. A legal notice was issued on 25.03.2023 and the
same was received by the respondent/accused on 27.03.2023. But, the
respondent neither repaid the amount nor gave any reply to the notice dated
25.03.2023.
4. The learned counsel for the appellant further submits that the trial
Court has rejected the complaint that it is a time barred debt by taking into
account the provision under Section 118 of the Limitation Act. In this regard,
the learned counsel has relied on the Judgment of the Hon'ble Supreme Court
in A.V.Murthy vs. B.S.Nagabasavanna reported in AIR 2002 SC 985,
wherein, the Hon'ble Supreme Court has held as under:
“The respondent refused to accept notice and we did
not have the advantage of hearing him. The respondent seems
to have contended that as the loan was advanced four years
prior to the issuance of the cheque, the debt or the liability for
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which the cheque was drawn by him had ceased to be legally
enforceable and, therefore, no complaint could have been filed
by the complainant under Section 138 of the Act.
As the complaint has been rejected at the threshold,
we do not propose to express any opinion on this question as
the matter is yet to be agitated by the parties. But, we are of the
view that the learned Sessions Judge and the learned Single
Judge of the High Court were clearly in error in quashing the
complaint proceedings. Under Section 118 of the Act, there is a
presumption that until the contrary is proved, every negotiable
instrument was drawn for consideration. Even under Section
139 of the Act, it is specifically stated that it shall be presumed,
unless the contrary is proved, that the holder of a cheque
received the cheque of the nature referred to in Section 138 for
discharge, in whole or in part, of any debt or other liability. It is
also pertinent to note that under sub-section (3) of Section 25 of
the Indian Contract Act, 1872, a promise, made in writing and
signed by the person to be charged therewith, or by his agent
generally or specially authorized in that behalf, to pay wholly
or in part a debt of which the creditor might have enforced
payment but for the law for the limitation of suits, is a valid
contract. Moreover, in the instant, the appellant has submitted
before us that the respondent, in his balance sheet prepared for
every year subsequent to the loan advanced by the appellant,
had shown the amount as deposits from friends. A copy of the
balance sheet as on 31st March 1997 is also produced before us.
If the amount borrowed by the respondent is shown in the
balance sheet, it may amount to acknowledgement and the
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creditor might have a fresh period of limitation from the date on
which the acknowledgement was made. However, we do not
express any final opinion on all these aspects, as these are
matters to be agitated before the Magistrate by way of defence
of the respondent.
This is not a case where the cheque was drawn in
respect of a debt or liability, which was completely barred from
being enforced under law. If for example, the cheque was
drawn in respect of a debt or liability payable under a wagering
contract, it could have been said that the debt or liability is not
legally enforceable as it is a claim, which is prohibited under
law. This case is not a case of that type. But, we are certain
that at this stage of the proceedings, to say that the cheque
drawn by the respondent was in respect of a debt or liability,
which was not legally enforceable, was clearly illegal and
erroneous.”
5. Mr.A.Senthil Kumar, learned counsel, who entered appearance for
the respondent, submitted that the respondent has repaid a sum of Rs.27 lakhs
to the complainant/appellant and that was also admitted by the complainant in
his evidence. The learned counsel has also referred to the evidence of the
complainant/appellant and submitted that the complainant has received a sum
of Rs.27 lakhs on various dates. Therefore, according to the respondent, there
was no legally enforceable debt towards the complainant.
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6. This Court considered the rival submissions and also perused the
materials placed on record.
7. The appellant has lodged the above complaint that the respondent
borrowed a sum of Rs.25 lakhs on 21.12.2015 and gave a hand slip (Ex.P1).
He also borrowed a sum of Rs.16 lakhs on 27.11.2017 and gave another hand
slip (Ex.P2) in the same manner. Admittedly, these instruments are not the
stamped instruments and it cannot be considered that the respondent borrowed
money from the complainant. The trial Court has found that the cheque Ex.P3
was issued as a blank cheque and it was filled up by the appellant. The
appellant has also admitted the same in his evidence. The appellant has not
stated as to when this cheque was given by the respondent, either in his
complaint or in the legal notice. The trial Court has observed so in its
Judgment dated 30.05.2024.
8. This Court has also provided three opportunities to the
complainant/appellant to place the complaint as well as the notice and the
evidence before this Court for appreciation of the complaint. However, the
appellant failed to place the complaint, notice and the evidence copy before
this Court.
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9. From the evidence of the complainant/appellant, the trial Court
has come to the conclusion that the respondent has repaid a sum of Rs.27 lakhs
to the complainant and by suppressing the said fact, the complaint was lodged.
The evidence of the complainant is not available and therefore, the relevant
paragraph of the trial Court is extracted as under:
“5/ nkw;go rhl;rpaj;jpid ,e;j
ePjpkd;wk; Ma;t[ bra;a[k;nghJ thjp fle;j 2015k;
Mz;L U:/25yl;rKk; 2017k; Mz;L U:/16yl;rk;
vjphpf;F fld; bfhLj;jjhft[k;. me;j flid
tl;oa[k; KjYkhf nrh;j;J jpUg;gp bfhLf;fhjjhy;
vjphp tHf;F fhnrhiyia thjpf;F
bfhLj;jjhft[k;. mjid thjpapd; t';fpapy;
jhf;fy; bra;jnghJ. Account Closed vd;W
jpUg;gg;gl;ljhft[k; thjp ,e;j tHf;if jhf;fy;
bra;Js;snghJ. thjp jdJ rhl;rpaj;jpy; fle;j
MW khjj;jpw;F Kd;g[ U:/20yl;rk; vjphp t';fp
K:ykhf jdf;F jpUg;gp bfhLj;Jtpl;lhh; vd;Wk;.
Vjphp ,uz;L fhnrhiyfis jyh ,uz;L
yl;rj;jpw;F jd;dplk; bfhLj;jjhft[k;. me;j
fhnrhiyfis tNYf;F brYj;jp U:/4.00.000-?
bgw;Wf; bfhz;ljhft[k;. nkw;go bjhiffis vjphp
thjpf;F mtuJ t';fp K:ykhfj;jhd; brYj;jpdhh;
vd;Wk;. nkYk; vjphp U:/3.00.000-? mt;tg;nghJ
thjpaplk; rpy;yiuahf ifapy; bfhLj;jhh; vd;Wk;.
nkYk; thjpapd; t';fp fzf;F jtpu. thjpapd;
kidtpapd; t';fpf; fzf;fpYk; vjphp gzj;ij
brYj;jpa[ss
; hh; vd;Wk; rhl;rpak;
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mspj;Js;shh;/ ,jdhy; nkw;go rhl;rpaj;jpy; ,Ue;J
vjphp thjpf;F ,Jtiu U:/27 yl;rk; tiu gzk;
bfhLj;Js;shh; vd;gJk;. mij jtpu thjpapd;
kidtpapd; t';fpapYk; vjphp gzk; brYj;jpa[ss
; hh;
vd;gJk; ,e;j ePjpkd;wj;jpw;F bjspthf
bjhpatUfpwJ/”
10. Though the appellant/complainant admitted before the trial Court
that he has received a sum of Rs.27 lakhs from the respondent, he failed to
mention the same in his complaint. The trial Court has also found that a sum
of Rs.25 lakhs said to have been given by the complainant in the year 2015
and it is also a time barred debt. Therefore, the Court found that the
respondent has rebutted the presumption and the complainant has not proved
his case that there is a legally enforceable debt.
11. The learned counsel for the appellant has relied on the Judgment
of the Hon'ble Supreme Court as cited above, which is of the year 2002. The
ratio has now been changed. The Hon'ble Supreme Court in Rangappa vs.
Srimohan, reported in 2010 (11) SCC page 441, held that in the event if the
accused was able to rebut the presumption, then, it is the responsibility of the
complainant to prove his case. The ratio, which is required to rebut, is also
preponderance of probabilities that there was no legally enforceable debt. In
this case, the respondent has effectively rebutted the presumption and the
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complainant has not approached the Court with clean hands.
12. This Court has also considered the ratio laid down 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
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justified; and
(iv) Merely because the appellate court on
reappreciation and re-evaluation of the evidence is inclined to
take a different view, 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."
13. 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
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reluctance of an 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.”
14. Since the appellant/complainant has not established his case and
as per the ratio laid down by the Hon'ble Supreme Court as cited above, this
Court is not inclined to entertain this appeal. Accordingly, this Criminal
Appeal is dismissed.
26.03.2025
ogy
Index : Yes / No.
Internet: Yes / No.
NCC : Yes / No.
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B.PUGALENDHI, J.
ogy
26.03.2025
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