Madras High Court
D.Kalaiselvi vs C.Sekar on 5 November, 2025
Author: D. Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl. A. No.711 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.11.2025
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl. A. No.711 of 2022
D.Kalaiselvi
W/o.Late.V.Deivasigamani,
No.24, Ponnan Street,
Purasawalkam, Chennai-600 007. ... Appellant/ Complainant
Vs.
C.Sekar,
S/o.M.Chinnakannu,
No.2, 3rd School Street,
Virugambakkam, Chennai-600 092. ... Respondent(s)
PRAYER: Criminal Appeal filed under Section 378(4) of Code of Criminal
Procedure praying to call for the records in C.C.No.3000 of 2016 on the file
of Fastrack Court No.1, Magistrate Level, Egmore at Allikulam and set aside
the order dated 26.02.2021, acquitting the respondent herein of the offence
under Section 138 of the Negotiable Instrument Act.
For Appellant(s) : Mr.K.Balasubramaniam
For Respondent(s) : Mr.K.Govindan
Legal Aid Counsel
ORDER
This appeal is filed against the judgment of the learned Metropolitan
Magistrate - Fast Track Court – 1, Allikulam, Chennai, dated 26.02.2021
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made in C.C.No.3000 of 2016. By the said judgment, the Trial Court
acquitted the respondent accusing of an offence under Section 138 of the
Negotiable Instruments Act. This is a private complaint filed by the
complainant under Section 200 of Code of Criminal Procedure, alleging an
offence under Section 138 of the Negotiable Instruments Act.
2. The case of the complainant is that the accused is the friend of the
brother of the complainant. For his business purpose, he requested a loan in
the month of December, 2015, promising to repay the same with a period of
two months. Accordingly, the complainant advanced a sum of Rs.6,00,000/-
(Rupees six lakhs) in cash at her home and in discharge of the liability, on
the same date the accused issued the subject matter cheque dated 15.02.2016
for a sum of Rs.6,00,000/-. Upon being presented, the same returned
dishonoured with the endorsement “funds insufficient”. Thereafter, a
statutory notice was issued demanding the amount due under the cheque.
Since there is no payment, the private complaint is filed. Upon recording a
sworn statement the complaint was taken on file, summons were issued and
copies were furnished. Upon questioning, the accused denied the allegations.
In the Trial, in order to bring home the charge, the complainant examined
herself as P.W.1. The subject matter cheque was marked as Ex.P1. The
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memo of dishonour was marked as Ex.P2. The statutory notice was marked
as Ex.P3. Acknowlegment card was marked as Ex.P4. Upon being
questioned under Section 3B of the Code of Criminal Procedure about the
incriminating evidence on record, the accused denied the same as false.
Thereafter, accused examined himself as P.W.1 and the notice issued on
behalf of accused was marked as Ex.D1. The counter foil book and the
cheque book belonging to the accused was marked as Ex.D1A and
photocopy of a bond written in stamp paper is marked as Ex.D2. Thereafter,
the Trial Court considered the case of the parties. The Trial Court considered
the fact that the complainant was a housewife and was not paying any
income tax and her averments relating to her capability and from where the
amount was mobilised by her and considering the fact the accused has
pleaded about borrowing only a sum of Rs.3,00,000/-, that too at the
instance of her brother and thereafter it is pleaded that the amount was
repaid but however, the cheque was misused, the Trial Court held the
defense of the accused as probable and the accused rebutted presumption to
the level of preponderence of probability and granted the benefit of doubt
and acquitted him. Aggrieved thereby, the present appeal has been filed.
3. Learned counsel for the appellant by taking this Court through the
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entire evidence on record firstly would submit that as far as Ex.D2 bond is
concerned, the same is a photocopy marked with objection. Secondly, he
would submit that in the chief examination of the accused, he has taken a
different stand that with reference to payment of lease amount to the brother
of the complainant, accused issued cheque. But, however, in the cross-
examination, he took a difference stand that he has borrowed a sum of
Rs.3,00,000/- by virtue of Ex.D2. Absolutely the case of the accused is
irreconcilable even the reply notice was not given within time and only after
summons was served in the complaint Ex.D2 notice was given after recall of
NBW. Even in the same, a different version is given, thus, accused attempted
to hoodwink the Court by telling lies. Absolutely no defence is made out
much less to the level of preponderance of probability. When the signature in
the cheque is admitted and when the complainant has duly proved the other
ingredients, presumption under the Negotiable Instruments Act would arise
in complainant's favour. Considering the nature of the amount, the Trial
Court ought to have believed the version of the complainant and convicted
the accused. In a case under Section 138 of the Negotiable Instruments Act,
mere raising of a doubt itself is not enough. In the scheme of things, accused
should have let in credible evidence. In the absence thereof, on the
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presumption alone the case of the complainant is liable to be upheld and
accused is liable to be convicted.
4. Per contra, learned Senior Counsel appearing on behalf of the
accused would submit that the case of the complainant itself is doubtful. The
complainant had different answers with reference to her capability and also
on how she had mobilised the amount. When she was cross-examined by
producing Ex.D2, she had denied the same but however, it must be seen that
only for the sum of Rs.3,00,000/- which was paid and it was repaid, the
cheque was issued as security and the same was being belatedly misused by
the complainant.
5. I have considered the rival submissions made on either sides and
perused the materials placed on record.
6. Firstly, even though the learned counsel for appellant would argue
with reference to the weakness of the defense of the accused, first the case of
the complainant has to be considered. It is not the case of the complainant
that the accused is a relative or complainant's friend. The complainant has
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categorically stated that the accused is only an acquaintance and friend of
her brother. Secondly, it was not pleaded by the complainant in the
complaint or in the statutory notice or in the chief evidence that the amount
of Rs.6,00,000/- was lent to the accused for any interest.
7. The case of the complainant is that the accused borrowed the sum
as a hand loan and promised to repay within two months and issued a post
dated cheque on the same date. In this regard, two very important facts have
to be noticed. It is not the case of the complainant that the accused has filled
up the entire cheque and has given it to her. It is only the signature which is
said to be that of the accused and the details in the post-dated cheque namely
the amount, date, name etc., are not filled up in the handwriting of the
accused. Second most important thing that the complainant states is that she
had managed to scramble the total amount of Rs.6,00,000/- from the two
lakhs she borrowed and kept for her daughter's wedding and other small
savings from the income and also by pledging the jewels she raised the
balance amount and paid for the accused. That defies any logic or reasoning
especially when the accused is not even her friend or relative and the fact
that she had pledged her jewels for interest and lent the loan without interest
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is to be considered. Further, the amount is said to have been advanced in the
year 2015, the amount is Rs.6,00,000/-. When such a huge amount is being
lent without any document whatsoever and even the cheque is not entirely
filled up by the accused, the approach by the Trial Court in holding that by
due cross-examination the accused has rebutted the presumption and in the
absence of any further proof, granting benefit of doubt to the accused cannot
be said to be a perverse view or an impossible view to be upturned in an
appeal against acquittal.
8. Accordingly, the appeal is without any merits and the same is
dismissed. No costs.
05.11.2025
mka
Index: Yes/No
Speaking/ Non-Speaking order
Neutral Citation: Yes/No
D. BHARATHA CHAKRAVARTHY, J.
mka
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To:
1.The Metropolitan Magistrate
Fast Track Court – 1,
Egmore, Allikulam, Chennai.
2.The Public Prosecutor,
Madras High Court.
05.11.2025
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