Madras High Court

Mr.B.Sakthivel vs Mr.R.Annaji on 4 November, 2025

Author: D.Bharatha Chakravarthy

Bench: D.Bharatha Chakravarthy

                                                                                         CRL A Nos. 682 and 683 of 2012



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                  DATED: 04-11-2025
                                                           CORAM
                      THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
                                                CRL A No. 682 of 2012
                                                       AND
                                               CRL A NO. 683 OF 2012
                Mr.B.Sakthivel

                                                                                                 ..Appellant in both
                                                                                                            Crl.A.'s
                                                                Vs
                Mr.R.Annaji
                                                                      ..Respondent in both
                                                                                   Crl.A.'s
                Prayer in Crl.A.No.682 of 2012: Criminal Appeal filed under Section 378 of
                Code of Criminal Procedure to set aside the judgment of acquittal ordered by
                the Judicial Magistrate, Fast Track Court, Hosur in S.T.C.No.99/2011 dated
                07.08.2012.
                Prayer in Crl.A.No.683 of 2012: Criminal Appeal filed under Section 378 of
                Code of Criminal Procedure to set aside the judgment of acquittal ordered by
                the Judicial Magistrate, Fast Track Court, Hosur in S.T.C.No.193/2011 dated
                07.08.2012.
                           For Appellant in       Mr.M.Yogeshwaran
                           both Crl.A.'s:         for Mr.D.Padmanabhan


                           For Respondent in      Mr.C.Prabakaran
                           both Crl.A.'s:




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                                                                                        CRL A Nos. 682 and 683 of 2012



                                                      JUDGMENT

Both these Criminal Appeals are between the same parties and as such,

they are taken up and disposed of together.

2. Crl.A.No.682 of 2012 is filed as against the judgment of the learned

Judicial Magistrate, Fast Track Court, Hosur dated 07.08.2012 made in S.T.C.

No.99 of 2011 thereby acquitting the accused of offence under Section 138 of

Negotiable Instruments act. Crl.A.No.683 of 2012 is filed as against the

judgment made on the same day i.e., 07.08.2012 made in S.T.C.No.193 of 2011

by the learned Judicial Magistrate, Fast Track Court, Hosur, whereby also the

respondent/accused was acquitted of the offence under Section 138 of

Negotiable Instruments Act.

3. The case of the appellant/complainant is that the complainant and the

accused are friends being the agents of Life Insurance Corporation of India. On

account of the acquaintance, the accused approached for a hand loan for a sum

of Rs.1,00,000/- (One lakh rupees only) on 20.04.2010 and promised to return

the amount in three months time. On the same day, the complainant advanced

the amount by way of a cheque.

4. Even on the date of receiving the cheque from the complainant, the

accused issued a post dated cheque for repayment of the said sum of

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Rs.1,00,000/- by dating the cheque as 30.07.2010. Again on 15.05.2010, the

accused approached for a further sum of Rs.2,00,000/- (Rupees Two Lakhs

only) for payment to his contractor who constructed a house in Hosur. That

amount was also paid by the complainant on 20.05.2010. On receipt of the said

amount, the accused issued another cheque dated 20.08.2010 for repayment of

the same.

5. The complainant deposited both the cheques for collection on

23.08.2010 but was returned as dishonoured cheque with an endorsement

'insufficient funds'. Thereafter, the complainant issued a statutory notice. The

accused received the same but failed to make payment and as such the private

complaints were filed.

6. As a matter of fact, both the complaints were filed with an application

for condonation of delay. In the said application, it is mentioned that after the

issuance of statutory notice, the accused approached the complainant and made

part payment of a sum of Rs.55,000/-. After condoning the delay and after

recording sworn statement, the complaints were taken on file. Upon issuing the

summons and furnishing the copies to the accused, the accused denied the

allegations and stood the trial.

7. In order to bring home the charge in both cases, the complainant

examined himself as PW1 and Ex.P1 to P6 were marked. Upon being

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questioned under Section 313 of Code of Criminal Procedure about the material

evidence and incriminating circumstances on record, the accused denied the

same as false.

8. Thereafter, accused examined himself as DW1 and his wife was

examined as DW2. The trial Court considered the case of the parties. The trial

court considered the fact that the complainant though had stated in the condone

delay application, did not disclosed the same in detail in the complaint with

reference to the receipt of a sum of Rs.55,000/-.

9. Even with reference to Rs.55,000/-, though the complainant initially

had admitted only Rs.55,000/- later in the cross examination he admitted

receipt of a total sum of Rs.85,000/-. Though the complainant had stated that

the entire sum of Rs.3,00,000/- was due and in some portion of his evidence, he

has stated that amounts were paid towards the interest, since the complainant

himself did not stick to his versions one way or the other, the trial Court held

that by the said cross examination, the accused had rebutted the presumption

and in the absence of clear cut proof with reference to the advancement of the

said sum, especially when the accused had put forth the case that with reference

to some other transaction, the cheques were issued as security, and the same is

being misused, the trial Court granted the benefit of doubt to the accused and

acquitted the accused. As against which, the appeals are filed.

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10. Heard, Mr. M.Yogeshwaran, learned counsel appearing on behalf of

Mr.D.Padmanabhan, learned counsel appearing for appellant and

Mr.C.Prabakaran, learned counsel appearing for the respondent in both the

cases.

11. Learned counsel appearing for the appellant after taking this court

through the material evidences on record would submit that in this case, the

first finding of the trial court as if the complainant never received any further

amount cannot be correct as in the affidavit filed in support of the application

to condone the delay in filing the private complaint, it is categorically

mentioned that the accused approached the complainant and paid a sum of

Rs.55,000/-. Though, the complainant had initially denied the further payment

of Rs.30,000/- as cash, it can be seen that the same was paid belatedly after the

filing of the condone delay application and as such, the complainant had

admitted fairly about the payment of the said sum of Rs.30,000/-.

12. In any event, it can be seen that the same would be a circumstance

against the accused also when the accused had stated that he had repaid a sum

of Rs.85,000/-, nothing else is brought forth on record by the accused in order

to prove that the said sum is paid with reference to some other transaction and

not with reference to the hand loan.

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13. When the complainant has marked the cheques and the signature is

not denied, the presumption under the Negotiable Instruments Act, 1881, would

arise in favour of the complainant. The accused, except for examining himself

and his wife, has not done anything to disprove the fact that he had borrowed

the amount. The cheque was issued only in discharge of the said liability.

14. As a matter of fact, it is categorically stated by the complainant that

the first payment of Rs.1,00,000/- was made by way of a cheque. The second

transaction was paid by way of cash. Considering the friendship between the

parties, which is also not denied by the accused side, the trial court ought to

have believed the version of the complainant and ought to have convicted the

accused.

15. Per contra, the learned counsel appearing on behalf the

respondent/accused would submit that the accused and complainant were

friends and there were other transactions between the parties. It can be seen

that the complainant has helped the accused with reference to buying of

policies and the manner in which the accused had borrowed a sum of

Rs.1,00,000/- from one Mani and the cheques were given only as a security in

respect thereof, was rightly taken into account by the trial court and the accused

is acquitted.

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16. The complainant did not whisper anything about the receipt of the

payment of Rs.55,000/- or the other payment of Rs.30,000/- in the complaint.

Further, in the cross examination the complainant has made several inconsistent

and prevaricating statements and if the cross examination of PW1 is read in

full, it would throw doubt on the very case of the complainant. Therefore, the

trial court has rightly acquitted the respondent/accused.

17. The case of the complainant is that the accused had borrowed money

on two occasions and in discharge of the said liability, issued both the cheques

and the cheques upon being presented for collection, return dishonoured and

hence the case.

18. In this regard, firstly, though it is stated in the affidavit filed in

support of the condone delay application that the complainant had on three

dates was paid a total sum of Rs.55,000/- and thereafter, the complainant was

approaching him for further payment, in the cross examination the complainant

stated a different version that the Rs.55,000/- is meant towards interest and on

the next line, the complainant admits that it was for the advancement of the

loan and not for interest. The said answers in the cross examination is extracted

here under:-

ehd; ,e;j tHf;fpy; vjphpaplkpUe;J U:/55 Mapuk;

th';fp ,Uf;fpnwd; mJ tl;of;fhd gzkhFk;/ ,e;j gzk; vjphpf;F ifkhj;jhfj;jhd; bfhLf;fg;gl;lJ/ tl;of;fhf bfhLf;fg;gltpy;iy/

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19. Similarly, when it is the case of the accused that he has paid a total

sum of Rs.85,000/-, in the proof affidavit which is admittedly filed only after

the date of payment, the complainant has not stated anything about the receipt

of payment. In the cross examination, initially he has admitted the receipt of

Rs.55,000/-, but however denied the receipt of further payment of Rs.30,000/-

and the said answer is extracted here under:

ehd; U:/55 Mapuk; bjhifnahL nkYk; U:/30 Mapuk; gzkhf bgw;Wf;bfhz;Ls;nsd; vd;why; rhpay;y/

20. But, however as the cross examination proceeded further, the

complainant ultimately admitted the total sum of Rs.85,000/- and his answer is

as follows:-

th';fpa U:/1 yl;rj;jpy; bfhLj;j bjhif U:/85 Mapuk; nghf kPjp U:/15 Mapuk; bfhLj;j vjphp jw;nghJk; jahuhf ,Uf;fpwhh; vd;why; vjphp vd;dplk; th';fpa bjhif U:/3 yl;rk; MFk;/ mjpy; U:/85 Mapuk; jhd; jpUg;gpf;bfhLj;Js;shh;/

21. In the said background, the case of the accused is that one Mani was

working in the concern by name M/s.Janigo and they have purchased materials

from the said concern which were ultimately not accepted by the customers and

in that regard, the accused suffered a loss of Rs.1,00,000/-. Though the

complainant initially denied knowledge about the same, in the same breath he

will turn around and submits that the accused had only profited in the

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transaction and the said answers in the cross examination is extracted here

under:-

mth; bgah; kzpjhd;/ b$dpf;;a{ epWtdj;jpy;

                                  bghUl;fis          th';fp     vjphp      jd;
                                  thof;ifahsh;fSf;F         bfhLj;J       me;j
                                  bghUl;fs; rhpapy;iy vd;W thof;ifahsh;fs;

vjphpaplk; jpUk;gbfhLj;jjhft[k; vjphpf;F U:/1 yl;rk; ec&;lk; Vw;gl;lJ vd;why; mJ Fwpj;J vdf;F bjhpahJ/ mjpy; mth; yhgk;

mile;Js;shh;/

22. Similarly, he further admitted that Rs.1,00,000/- was given to the

accused through the said Mani and in respect thereof, the accused had only

issued one cheque and not three cheques. The said answers in the cross

examination are extracted here under:-

vjphpf;F kzp K:ykhf U:/1 yl;rk; bfhLj;jJ cz;ik/ mJ 20/4/2010y; bfhLf;fg;gl;ljhFk;/ vjphp U:/1 yl;rk; th';fpf;bfhz;L ehd; 3 fhnrhiyfis ehd; vjphpaplk; th';fpndd; vd;why; rhpay;y/ 1 fhnrhiy jhd; vjphp bfhLj;jhh;/ mth; 3 fhnrhiyfs; bfhLj;jhh;

                              vd;Wk;    mjd;      nghpy;    jhd; ehd; kw;bwhU
                              tHf;fpy;      U:/2     yl;rk;      U:gha;f;F        me;j
                              fhnrhiyapd;          mog;gilapy;         nghl;Ls;nsd;
                              vd;why; rhpay;y/

23. Thus, on reading of the cross examination in total, the evidence of

the complainant has all along between a yes and no and in the teeth of the said

evidence, the trial court held that the presumption has been rebutted and the

version of the accused seems probable and acquitted the accused. The findings

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of the trial Court cannot be held to be a perverse finding or an implausible view

so has to be upturned in an appeal against acquittal.