Madras High Court
M/S.Sree Gokulam Chits And vs S.Feroz Khan on 6 November, 2025
Author: D. Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
CRL A No. 185 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06-11-2025
CORAM
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Criminal Appeal No. 185 of 2014
1. M/s.Sree Gokulam Chits and
Finance Co., (P) Limited
Rep. by Power Agent
Mr.V.Karnan S/o.K.Villiya Singam
Assistant Manager – Legal,
No.66, Arcot Road, Chennai – 600 024.
...Appellant
Vs
1. S.Feroz Khan
S/o.Sheikh Dawood,
M/s.Syed Dresses, 96, M.T.H.Road,
Padi, Chennai – 50. ...Respondent
PRAYER
The Criminal Appeal has been filed under Section 378 of Criminal Procedure
Code against the judgment in C.C.No.6125 of 2006 dated 24.02.2014 passed by
the Metropolitan Magistrate, Fast Track Court – I, Egmore, Chennai.
For Appellant : Mr. P. Rakesh Kumar
For Respondent : Mr. E. Narayanan
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CRL A No. 185 of 2014
JUDGMENT
This appeal is filed against the judgement of the learned Metropolitan
Magistrate - Fast Track Court-I, Egmore, Chennai, dated 24.02.2014 in
C.C.No.6125 of 2006. By the said judgment, the respondent accused was
acquitted of an offence under Section 138 of the Negotiable Instruments Act,
1881.
2. This is a private complaint filed by the appellant under Section 200 of
the Code of Criminal Procedure alleging an offence under Section 138 of the
Negotiable Instruments Act. The case of the complainant is that the complainant
is a Company running chit transactions. The accused participated in one such
transaction and in respect of the balance due payable by him issued a cheque for
a sum of Rs.2,24,261/- dated 18.08.2005. Upon the cheque being presented, the
same returned dishonoured with an endorsement “funds insufficient”.
Thereafter, a Statutory Notice was issued on 09.09.2005, which also returned
with an endorsement “not present”. The accused knowingly evaded the notice
and didn't pay the amount within the statutory period. Thereafter the complaint
was filed.
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3. Upon recording the sworn statement, the complaint was taken on file as
C.C.No.6125 of 2006. Upon issue of summons and appearance of the accused
and questioning, the accused denied the allegations stood trial. One A.Andro,
the employee of the complainant company, was examined as P.W.1 and Ex.P1 to
Ex.P7 were marked on behalf of the complainant. During the course of the cross
examination, a photocopy of the passbook issued to the accused was marked as
Ex.D1. Upon being questioned about the material evidence on record under
Section 313 of the Code of Criminal Procedure, the accused denied the same as
false. Thereafter, no evidence was let in on behalf of the defence. The trial Court
considered the fact that both parties admitted the relationship and the accused
participated in a particular chit, which is evidenced by Ex.D1. The trial Court
considered the fact that in the passbook, there is an entry that as on 09.07.2003,
the balance amount was Rs.88,650/- and therefore, within a short period of two
years that is on 18.08.2005, it could not have been Rs.2,24,261/- and therefore,
it held that the defence of the accused that even before the liability had arisen, a
blank cheque was left with the appellant company and that it could have been
filled up and presented could not be ruled out and given the benefit of doubt to
the accused and acquitted him as against which the present appeal is filed.
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4. Mr. P. Rakesh Kumar, learned counsel appearing on behalf of the
appellant firstly would submit that the finding of the trial Court that only a sum
of Rs.88,650/- is found to be due in the passbook is per se erroneous, because,
in the passbook, the amount due to the accused periodically will be entered into.
If the accused defaults, thereafter, as per the agreement between the
complainant company and the accused, the balance outstanding will be
collected along with the interest including default interest and penal interest.
The calculation will not be contained in the passbook, which is retained by the
accused. Therefore, the trial Court errored in holding that there is no proof for
legally enforceable debt. The very fact that the amount has been correctly
calculated as Rs.2,24,261/- by itself would adumbrate that the complainant
company had undertaken the exercise of calculating the principal amount and
the interest amount due and only for the total amount due in discharge of the
liability, the accused had issued the cheque. It is not the case of the accused that
he has discharged the entire amount and no such receipt for discharge is also
produced. In the absence of the same, when the cheque has been duly signed by
the accused and when the complainant has produced the cheque, the
presumption arises in favour of the complainant company and the trial Court
ought not to have acquitted the accused.
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5. Per contra, Mr.E.Narayanan, learned counsel appearing on behalf of the
accused would submit that the passbook is made with reference to the entries
that is maintained by the complainant company. As a matter of fact, the
complainant company should have filed the statement of accounts in discharge
of its onus to prove the balance outstanding along with the interest. It omitted
and failed to do. As a matter of fact, it is only on behalf of the accused, the
passbook itself was marked. The passbook categorically contains the statement
that only a sum of Rs.88,650/- was due. When the cheque is presented for sum
of Rs.2,24,261/- and P.W.1 was not in a position to answer as to how the said
calculation made and when and how the accused handed over the cheque. No
exception whatsoever can be taken to the findings of the trial Court.
6. I have considered the rival submissions made on either side and
perused the material records of the case.
7. As a matter of fact, the learned counsel for the complainant company
argued that beyond the page to which, the trial Court has looked into, there may
be other entries also. On a perusal of the Ex.D1, passbook, even from the last
page, it is clear that a sum of Rs.1,31,280/- is paid, out of the total amount of
Rs.2,25,000/- and it is mentioned that the balance is Rs.93,720/-. The same is
written only by the officials of the appellant company. In that view of the
statement, when the same is said to have been due as on October, 2003,
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suddenly, in the year 2005, when the cheque was issued in August, 2005, within
22 months, the same cannot become Rs.2,24,261/- by any calculation. As
rightly contended by the learned counsel on behalf of the accused, not even the
statement of accounts is produced. Therefore, the accused has rebutted the
presumption and once the accused has rebutted the presumption by way of
cross examination, it is for the complainant to have produced such statement of
accounts in support of their claim to prove the liability. In the absence thereof,
no exception whatsoever can be taken to the findings of the trial Court and it
cannot be said that the findings are perverse or an impossible view and in an
appeal against acquittal, the same cannot be upturned, unless, it is perverse or an
impossible view.
8. Accordingly, this Court finds no merit in this appeal and the appeal is
dismissed.
06-11-2025
ASI
Speaking order
Internet :Yes
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To
1. The Metropolitan Magistrate,
Fast Track Court – I, Egmore,
Chennai.
2. S.Feroz Khan
S/o.Sheikh Dawood,
M/s.Syed Dresses, 96, M.T.H.Road,
Padi, Chennai – 50.
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D. BHARATHA CHAKRAVARTHY, J.
ASI
Criminal Appeal No. 185 of 2014
06-11-2025
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