Madras High Court
R.Prabhakaran vs M.Balamurugan on 10 November, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.314 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.11.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.314 of 2018
R.Prabhakaran ... Appellant
Vs.
M.Balamurugan ... Respondent
PRAYER: Criminal Appeal is filed under Section 378 of Criminal
Procedure Code, to call for the records relating to order dated 21.02.2018
made in C.A.No.39 of 2017 on the file of the Fourth Additional District and
Sessions Court, Erode District at Bhavani reversal of the judgment dated
10.01.2017 made in STC.No.65 of 2015 on the file of the learned Second
Additional District Munsif Court, Bhavani (transferred STC No.2729 of
2013 on the file of the learned Judicial Magistrate Court, Bhavani), and set
aside the same by allowing this Criminal Appeal.
For Appellant : Mr.N.Manoharan
Page No.1 of 16
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Crl.A.No.314 of 2018
For Respondent : Mr.M.Guruprasad
JUDGMENT
The appellant as complainant filed a private complaint under Section
138 of Negotiable Instruments Act, 1881 in S.T.C.No.65 of 2015 before the
learned II Additional District Munsif, Bhavani (trial Court) against the
respondent/accused. The trial Court by judgment dated 10.01.2017
convicted the respondent and sentenced to undergo Simple Imprisonment for
one year and to pay the cheque amount of Rs.7,00,000/- as compensation to
the respondent in default to undergo Simple Imprisonment for three months,
for offence under Section 138 of Negotiable Instruments Act, 1881.
Challenging the same, the respondent preferred an appeal before the learned
Additional District Judge, Bhavani (lower appellate Court) in Crl.A.No.39
of 2017 and the same was allowed by judgment dated 21.02.2018 setting
aside the judgment of the trial Court, aggrieved over the same, the present
Criminal Appeal is filed by the appellant/complainant.
2.For clarity, the appellant and respondent are referred to as
complainant and accused respectively as per the complaint.
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3.Gist of the case is that the complainant and accused are friends, the
accused borrowed a sum of Rs.7,00,000/- from the complainant on
27.11.2012 for his urgent expenses and undertook to repay the same within a
month. In discharge of liability, the accused issued a cheque bearing
No.909287 (Ex.P1), dated 27.12.2012 drawn on Karur Vysya Bank, Bhavani
Branch. When the complainant presented the cheque (Ex.P1) for
encashment through his bank i.e., Tamil Nadu Mercantile Bank, Bhavani
Branch on 12.03.2013, the same was returned with an endorsement “Funds
Insufficient” on 13.03.2013 vide return memo (Ex.P2). Thereafter, the
statutory notice (Ex.P3) dated 08.04.2013 issued to the accused who
received the same and sent a reply (Ex.P5) on 10.04.2013 with vexatious
allegations, annoyed over the same, the complaint filed before the trial
Court.
4.During trial, the complainant examined as PW1 and the Bank
Manager, Karur Vysya Bank, Bhavani Branch examined as PW2 and
marked Exs.P1 to P6. On the side of the defence, the accused examined
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himself as DW1 and marked Exs.D1 & D2. On conclusion of trial, the trial
Court convicted the accused and the lower appellate Court had set aside the
conviction. As against the acquittal, the present appeal is filed.
5.The learned counsel for the complainant submitted that the Hon'ble
Apex Court in Rangappa v. Shr.Mohan reported in AIR 2010 SC 1898 held
that the statutory presumption under Section 139 of Negotiable Instruments
Act, 1881 mandates the existence of legal debt or liability. The accused
contention is that he never borrowed any loan from the complainant and
issued any cheque favouring the complainant. He further contended that the
complainant came in possession of the cheque in question (Ex.P1) from one
Perumal with whom, accused had a chit transaction in the year 2008. The
chit transaction was completed with Perumal in the year 2012 and, when the
accused asked for return of the security cheque, Perumal informed that the
cheque misplaced. This contention was exposed as false during the trial.
The learned counsel further submitted that the accused disputed the
signature in the cheque (Ex.P1). However, in this case, PW2, Bank Manager
of Karur Vysya Bank where the accused maintains his account, confirmed
signature found in the cheque (Ex.P1) is that of the accused, the accused not
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cross examined the Bank Manager/PW2. Further, both the trial Court and
the lower appellate Court gave a clear finding that the signature found in the
cheque (Ex.P1), the signature of the accused in 313 Cr.P.C questioning and
the signature of the accused (DW1) in the deposition all similar, which
clearly exposed the falsity of the accused's claim.
6.He further submitted the accused failed to examine Perumal though
he said to have moved his residence from Bhavani to Vijayamangalam. The
accused sent a reply notice (Ex.P5) but such defence taken even in Ex.D2,
the alleged complaint marked with objection, there is no such contention
further there is no proof to show that Ex.D2 was handed over to the Police.
Thus, the contention of the accused that the cheque (Ex.P1) was given to
Perumal in the year 2008 misused by the complainant in the year 2012 is
without any substance. In this case, yet another defence is that the cheque
bearing No.909286 dated 06.11.2008 and the cheque bearing No.909288
dated 11.11.2008 which are the preceding and following cheques of the
cheque (Ex.P1), both transacted during 2008, hence probablize the defence
that the cheque (Ex.P1) bearing No.909287 was given as security to Perumal
in the year 2008 misused. To prove the same, the accused marked his bank
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passbook (Ex.D1). On this point alone, the lower appellate Court allowed
the appeal setting aside the conviction of the trial Court, is perverse and
unsustainable. In this case, PW2 is the Bank Manager of Karur Vysya Bank,
Bhavani Branch, where the accused maintains his account and, through him,
Ex.P6, the bank statement of accused marked. PW2 confirmed the signature
found in the cheque (Ex.P1) is that of the accused and the cheque (Ex.P1)
was returned for the reason “Funds Insufficient”. But the accused neither
cross examined PW2 nor confronted Ex.P1 and the signature.
7.He further submitted that as per Section 118 of N.I Act, the cheque
is presumed to be drawn on the date mentioned in the cheque, unless there is
any contrary evidence or materials and as per Section 139 of N.I. Act, the
cheque to be presumed to issue in discharge of liability. In this case, the
accused failed to produce any material or dispute the cheque (Ex.P1). On
the other hand, the accused's contention that the signature has variations,
clearly exposed the accused's culpability and criminality. The financial
status of the complainant was questioned, but to substantiate the same, no
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materials produced. The complainant admitted that he runs a dyeing
industry and he has sufficient source of income to lend the loan amount.
Once the accused took the defence of questioning the complainant's financial
capability, it had to be substantiated with materials. In this case, except for
bald allegations, no other materials produced. The trial Court, by a well
reasoned judgment, rightly convicted the accused. On the contrary, the
lower appellate Court, merely on surmises and conjectures, without any
materials on its own gave an interpretation contrary to the evidence and
materials in the case, by setting aside the judgment of the trial Court. This
perverse finding to be set aside. In support of his submissions, the learned
counsel for the petitioner relied on decision of the Hon'ble Apex Court in
Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197 wherein it had
held that “even a blank cheque leaf, voluntarily signed and handed over by
the accused, which is towards some payment, would attract presumption
under Section 139 of the Negotiable Instruments Act, in the absence of any
cogent evidence to show that the cheque was not issued in discharge of a
debt.”
8.Further, he placed reliance on the decision of the Hon'ble Apex
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Court in Rajesh Jain v. Ajay Singh reported in (2023) 10 SCC 148 wherein
it had held that “the case of the complainant has been consistent throughout
as can be noticed from a perusal of the complainant, demand notice and
affidavit evidence. In fact, the signature on the cheque having not been
disputed, and the presumption under Sections 118 and 139 having taken
effect, the complainant's case stood satisfied every ingredient necessary for
sustaining a conviction under Section 138. The case of the defence was
limited only to the issue as to whether the cheque had been issued in
discharge of a debt/liability. The accused having miserably failed to
discharge his evidential burden, that fact will have to be taken to be proved
by force of the presumption, without requiring anything more from the
complainant.”
9.The learned counsel for the accused submitted that the contention of
the complainant that he and the accused are friends for the past 10 years and
due to the relationship, the complainant gave a loan of Rs.7,00,000/- is not
correct. The specific case of the accused is that the accused was a
Subscriber to the chit conducted by Perumal of Bhavani in the year 2008, at
that time, the cheque (Ex.P1) was given as security to Perumal and the chit
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was only for Rs.5,00,000/-. The cheque given to Perumal filled up by the
complainant and projected as though the complainant gave a loan of
Rs.7,00,000/- in the year 2012 to the accused. To probablize his defence,
the accused examined himself as DW1 and marked his bank passbook
Ex.D1 and the complaint given to the District Crime Branch Ex.D2 against
the complainant and Perumal. From the passbook (Ex.D1), it is proved the
cheques bearing Nos.909286 & 909288, which are the preceding and
following cheques to the cheque (Ex.P1), both transacted on 06.11.2008 and
11.11.2008 respectively, which probablizes that the cheque (Ex.P1) ought to
have been issued in the year 2008. Five years thereafter, the cheque (Ex.P1)
misused and projected as if it had been given in discharge of a loan liability
of Rs.7,00,000/-.
10.He further submitted that only after receipt of the statutory notice
(Ex.P3), accused came to know the misuse of cheque (Ex.P1). The accused
sent a reply (Ex.P5) informing complainant that he is a total stranger and the
cheque (Ex.P1) was not given in discharge of any liability to the
complainant. Further, the accused forwarded a complaint to the District
Crime Branch against Perumal and complainant on 12.04.2013 and marked
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the same as Ex.D2. The complainant failed to respond and appear before the
District Crime Branch, instead he filed the above complaint under Section
138 of N.I Act. The trial Court not considered the defence probablized by
the accused, proving that the cheque of the year 2008 had been misused by
the complainant, who was a total stranger. Merely invoking statutory
presumption under Sections 118 & 139 of Negotiable Instruments Act, 1881,
convicted the accused. The accused filed an appeal before the lower
appellate Court and the lower appellate Court found that the complainant is
not a man of means to extend such huge amount of Rs.7,00,000/- as loan and
allowed the appeal setting aside the conviction.
11.He further submitted that the Hon'ble Apex Court as well as this
Court held in a plethora of judgments that in cases of appeal against
acquittal, finding of the lower Court, acquitting the accused not to be
disturbed though the appellate Court might take a different view unless the
finding is perverse and unsustainable. The lower appellate Court by a well
reasoned judgment set aside the conviction, needs no interference by this
Court, hence, he prayed for dismissal of the appeal.
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12.This Court considered the rival submissions and perused the
materials available on record.
13.The cheque (Ex.P1) is that of the accused is not disputed. The
defence taken by the accused is that the accused was a Subscriber to an
indigenous chit conducted by Perumal and the cheque (Ex.P1) issued to
Perumal in the year 2008 as security. The accused admitting that the cheque
was given as security to Perumal confirms no person would receive an
unsigned blank cheque as security. The accused by his own admission
confirms the cheque handed over to Perumal. The defence of the accused
right from his reply notice (Ex.P5) is that he has not signed the cheque
(Ex.P1), but the falsity of his claim clearly exposed, recorded by the trial
Court and the lower appellate Court confirms that the signature in the
cheque (Ex.P1), signature in 313 Cr.P.C questioning, the signature in the
receipt filed by the complainant when he was directed to pay the cost to the
Legal Services Authority on 27.07.2016 and the signature in the deposition
of the accused as DW1, all are same. In the evidence of PW2, Bank
Manager of Karur Vysya Bank, Bhavani Branch, he was specifically
referred to the signature found in the cheque (Ex.P1), he confirms the
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signature is that of the accused which is identical to the signature found in
the bank records. PW2 produced the bank statement of account (Ex.P6) of
the accused. The accused not disputed or cross examined PW2 in this
aspect. The trial Court referring to the signature found in the cheque (Ex.P1)
comparing it with other signatures in this case, confirms that the accused has
signed the cheque (Ex.P1), and further the lower appellate Court confirms
the signature of the accused in the cheque. Thus, Sections 118 & 139 of
Negotiable Instruments Act, 1881 comes into play and the defence taken by
the accused that the cheque (Ex.P1) given to Perumal in the year 2008 is
nothing but an afterthought.
14.The other defence taken is that the complainant has got no
financial capability to give loan of Rs.7,00,000/- to the accused. Merely
raising a defence, without any supporting evidence or material, cannot be
accepted. It is seen from the complaint Ex.D2 given to the District Crime
Branch and in Ex.P5, reply notice, there is no disputation with regard to the
complainant's capability of lending loan. The complaint (Ex.D2) was lodged
on 12.04.2013 after receipt of the statutory notice (Ex.P3) dated 08.04.2013.
The trial Court by a well reasoned judgment finding hollowness in the
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defence of the accused, had rightly convicted the accused.
15.The only ground on which the appeal was allowed by the lower
appellate Court is that the complainant failed to prove his financial
capability of lending loan of Rs.7,00,000/- to the accused is without
materials, further the presumption under Section 139 of Negotiable
Instruments Act, 1881 is that the cheque issued for discharge of liability, in
whole or in part, unless contrary is proved and the accused failed to
probablize his defence by any cogent material or evidence. The lower
appellate Court further justifies that the cheques bearing Nos.909286 &
909288 are the preceding and following cheques cleared by the bank on
06.11.2008 and 11.11.2008 respectively, hence, the complainant holding the
cheque (Ex.P1) given by the accused to Perumal in the year 2008 and
presenting for collection in the year 2012, is again on a wrong notion. As
per Sections 20 & 118 of N.I. Act, it is to be presumed that the cheque was
drawn on the date it bears and the cheque drawn for consideration unless it is
proved the cheque obtained by fraudulent means. In this case, no contrary
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evidence or material produced by the accused to substantiate his claim that
the complainant misused the cheque (Ex.P1) given by the accused to
Perumal. Further, PW2, the Bank Manager confirmed the cheque (Ex.P1)
signed by the accused got dishonoured for the reason “Insufficient Funds” in
the year 2013.
16.In view of the above, this Court finds that the cheque (Ex.P1) was
given in discharge of liability by the accused to the complainant, which is
proved by cogent evidence and materials produced in this case. The trial
Court rightly convicted the accused, but the finding of the lower appellate
Court is perverse and the lower appellate Court failed to consider the case in
its totality, given a reason contrary to the evidence, materials and the law,
hence, not sustainable.
17.In the result, the judgment dated 21.02.2018 in Crl.A.No.39 of
2017 passed by the learned Additional District Judge, Bhavani is set aside.
Consequently, the judgment, dated 10.01.2017 in S.T.C.No.65 of 2015
passed by the learned II Additional District Munsif, Bhavani is restored and
confirmed. Accordingly, this Criminal Appeal stands allowed.
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18.The trial Court is directed to secure the accused/respondent to
undergo the period of conviction. It is made clear that in the interregnum, if
the accused comes forward for settlement and discharge his liability, he can
approach the complainant for compounding the offence which can be
entertained even by the trial Court.
10.11.2025
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
vv2
To
1.The II Additional District Munsif,
Bhavani.
2.The Additional District Judge,
Bhavani.
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M.NIRMAL KUMAR, J.
vv2
10.11.2025
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