Madras High Court
S.K.Elumalai vs K.Madhu Srinivas on 11 November, 2025
Author: M.Nirmal Kumar
Bench: M. Nirmal Kumar
CRL A No. 801 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11-11-2025
CORAM
THE HONOURABLE MR JUSTICE M. NIRMAL KUMAR
CRL A No. 801 of 2012
1. S.K.Elumalai
Appellant(s)
Vs
1. K.Madhu Srinivas
S/o.K.Vishnu Vartha Rao No.20/9
Natesan Nagar Fifth Main Road,
Virugambakkam, Chennai
Respondent(s)
For Appellant : Mr.C.Rishi
for Mr.R.Balachandran
For Respondent : Ms.M.Sumi Arnica
Legal Aid Counsel
ORDER
Today, the matter is listed under the caption “For Being
Mentioned” at the instance of the learned Counsel for the appellant.
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M.NIRMAL KUMAR, J.
rsi
2.The learned Counsel for the appellant submits that though this
Court dismissed the appeal on 07.10.2025, the exact disposal of the case not
mentioned in the order. Hence, seeks clarification.
3.On perusal of the order it is seen that the result portion of the
order has not been mentioned. Hence, the last line of paragraph No.5
substituted to read as under:
“5. ..... Hence this Court finds no reason to interfere with the
findings of the Trial Court and the Criminal Appeal stands dismissed.”
4.The Registry is directed to incorporate the above in the order
dated 07.10.2025 and issue fresh copy of the order dated 07.10.2025.
5.The issue is clarified, accordingly.
11.11.2025
rsi
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.10.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
S.K.Elumalai
... Appellant
Vs.
K.Madhu Srinivas
... Respondent
Prayer: Criminal Appeal filed under Section 375 of Cr.P.C., to set aside the
order of acquittal in C.C.No.5260 of 2006 on the file of the Fast Track
Magistrate-III, Saidapet, Chennai and punish the accused under Section 138
of the Negotiable Instruments Act for issuing the cheque bearing No.928158
dated 10.01.2006 drawn on ICICI Bank, Kilpauk Branch without sufficient
funds.
For Appellant : Mr.C.Rishi
for
Mr.R.Balachandran
For Respondent : Ms.Sumi Arnica
Legal Aid
Counsel
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JUDGMENT
The appellant as complainant filed a private complaint under
Section 138 of Negotiable Instruments Act (hereinafter referred to as “NI
Act”) against the respondent in C.C.No.5260 of 2006. The learned Fast
Track Magistrate-III, Saidapet, Chennai by judgment dated 10.07.2012
dismissed the complaint. Against which, the present appeal filed.
2.The gist of the complaint is that the complainant received a
cheque for Rs.6,70,000/- bearing No.928158 dated 10.01.2006 drawn on
ICICI Bank, Kilpauk Branch issued by the respondent towards legally
enforceable debt. At the time of issuing the cheque, the respondent informed
the appellant that sufficient funds available in the bank account maintained
by him in ICICI bank, Kilpauk Branch. The complainant presented the
cheque for collection through Indian Bank, Sholinganallur Branch on
12.01.2006, but the cheque was returned for the reason "Payment stopped by
the drawer". Thereafter, the appellant questioned the respondent and the
respondent requested the appellant not to initiate any legal proceedings for
dishonour of cheque and once again requested to present the cheque for
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collection in the month of March. Hence on 15.03.2006, the cheque was
again presented, but again, it was returned for the reason "payment stopped
by the drawer." Thereafter, statutory notice issued on 21.03.2006 which was
served on the respondent and thereafter following the statutory procedures,
the complaint was filed. During trial, the complainant examined himself as
P.W.1 and marked five documents Ex.P1 to Ex.P5. On the side of the
respondent, one Ranjith Kumar was examined as D.W.1 and through him
Ex.D1 marked. On conclusion of trial, the Trial Court dismissed the
complaint.
3.The contention of the learned counsel for the appellant is that the
respondent not denied the issuance of cheque, his signature in the cheque but
takes a stand that the cheque was issued as security. Once the drawer of the
cheque admits his signature and issuance of the cheque, statutory
presumption under Sections 118 and 139 of the NI Act comes into play. The
respondent failed to get into the dock and probabilise his case, on the other
hand, one Ranjith Kumar claiming to be a known person to both the
appellant and the respondent was examined and through him Ex.D1/Sale
deed entered between Indirani and Jegadeesan, wife and son of Rathina
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Naicker with M/s.Zillion Estates Private Limited with regard to the land of
78 cents in Shollinganallur Village. The respondent is a party to the
document as Confirming Party. The appellant is the relative of the said
Indirani and Jegadeesan. The respondent as an agent of M/s.Zillion Estates
Private Limited approached the appellant and the appellant, a relative of the
vendors to the property negotiated and the price was fixed. It was agreed that
the appellant would be given Rs.10,000/- as brokerage for each cent. Thus it
was agreed to pay Rs.7,80,000/- and as part payment Rs.6,70,000/- was paid.
The Trial Court given a finding that this fact has not been disclosed either in
the statutory notice or in the complaint and for the first time such a stand
taken by the complainant in the proof affidavit and during trial. The
appellant submit that D.W.1 admits he acted as a broker to the land deal and
received commission. When D.W.1 admits the sale and acting as a broker
for the sale and receiving brokerage, it is natural that the appellant who is
also a real estate agent and relative of the vendor was agreed to be paid his
commission. This fact not considered by the Trial Court but on its own gives
an explanation that when the property was purchased fixing the rate at
Rs.30,000/- for each cent, brokerage of Rs.10,000/- for each cent is abnormal
and for a consideration of Rs.28,08,000/- the amount of Rs.6,70,000/-
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claimed as a legal brokerage is abnormal and the explanation of the
respondent that the cheque was issued as a security is acceptable is without
any basis of evidence. The commission in real estate business is fixed on the
convenience and necessity of parties.
4.The learned counsel for the respondent submitted that the
appellant admits that except for identifying the vendors to the property,
namely, Indirani and Jegadeesan, relatives of appellant, thereafter he had not
taken any active part thereafter. Merely for identifying the vendor for the
property, a person will not be paid such a huge amount as brokerage. The
respondent earlier entered an agreement with the appellant and the
respondent/Confirming Party for the sale. Since the purchaser Company is in
Secunderabad, they appointed the respondent as local agent to negotiate and
he negotiated the deal for for the property and entered into an agreement with
appellant, at that time, as security cheque was issued. Even before the date
of the cheque, sale deed was executed on 07.01.2006 between vendor and
buyer Company and the respondent as Confirming party but the cheque is
dated 10.01.2006. Further the appellant had come with a different version at
each stage and he had not disclosed acting as a broker and receiving
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commission neither in the statutory notice nor in the complaint. On the other
hand, the respondent had probabilised his defence by examining D.W.1 who
is also a broker involved in the transaction and through him, Ex.D1 marked.
The appellant could not give any answer to Ex.D1. The Trial Court
considering all these aspects had rightly dismissed the complaint. Hence,
prayed for dismissal of the appeal.
5.Considering the submissions made and on perusal of the
materials, it is seen that the cheque/Ex.P1 is dated 10.01.2006, it was
presented for encashment earlier during the month of January 2006 and
returned for the reason “Payment Stopped by the drawer of the cheque” and
it was again presented for encashment during March 2006 which was
returned for the reason “Payment Stopped by the drawer of the cheque”.
Statutory notice was issued on 21.03.2006 and thereafter, complaint filed.
The appellant neither in his statutory notice/Ex.P2 nor in his complaint made
any reference as commission agent. According to the complainant, he only
identified the vendors, namely, Indirani and Jegadeesan to the respondent
who acted as an agent to M/s.Zillion Estates Private Limited. It is seen that
the appellant though relative to the vendor of the property suppressed the
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true fact that the vendors are second wife and son of Rathina Naicker. The
first wife and sons of Rathina Naicker immediately after the sale deed
objected for the sale and taken to legal recourse. In this case, the sale deed
was executed on 07.01.2006 and the cheque is dated 10.01.2006 and if at all
there is agreed commission, it ought to have been before conclusion of the
sale. It is seen that the appellant is neither a signatory nor witness and he has
nothing to do with the sale deed executed between the vendors and the
purchaser. The appellant himself admits that he only identified the vendors to
the property and nothing more, to identify the owners of the property, no one
could agree to give commission of Rs.10,000 for each cent, which is
abnormal and unbelievable when the sale cost for each cent is fixed at
Rs.30,000/-. The Trial Court considering all these aspects and considering
the provision of Indian Contract Act and finding the respondent probabilised
his defence by cross examination of complainant and examination of defence
witness and marking defence exhibits, rightly dismissed the complaint.
Hence this Court finds no reason to interfere with the findings of the Trial
Court.
6.This Court appreciates Ms.M.Sumi Arnica, Legal Aid Counsel
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for the respondent for her strenuous efforts in doing research and putting
forth the case of the respondent effectively. The Legal Services Authority to
pay the remuneration to the Legal Aid Counsel as per Rules.
07.10.2025
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
cse
To
The Fast Track Magistrate-III,
Saidapet, Chennai.
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M.NIRMAL KUMAR, J.
cse
07.10.2025
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