[Cites 10, Cited by 0]
Madras High Court
Mrs.Irene Geetha vs P.Gopalakrishnan on 7 April, 2026
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.447 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 25.02.2026
PRONOUNCED ON : 07.04.2026
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.447 of 2021
G.E.Nelsan Nesakumar (Died),
S/o.T.Gilpert Ebinesar,
No.4, Gupta Nagar,
Ganthi Nagar Post,
Udumalpet, Tiruppur District.
1.Mrs.Irene Geetha (aged about 64 years),
W/o.Late Nelson Nesakumar,
WB/176, No.4, Gupta Layout, Udumalaipet Village,
Post: Gandhinagar, Sub-Dist: Udumalpet,
Tiruppur District.
2.Mr.Andrew Nelson (aged about 33 years),
S/o.Late Nelson Nesakumar,
No.F28/2A, Srree Daksha Kshipta,
Sowripalayam to Nanjundapuram Road,
Near Don Bosco School,
Vellalore, Coimbatore District.
3.Mr.Danny Nelson (aged about 30 years),
S/o.Late Nelson Nesakumar,
WB/176, No.4, Gupta Layout, Udumalaipet Village,
Post: Gandhinagar,
Sub-Dist: Udumalpet, Tiruppur District. ... Appellants
[Sole Appellant died and his legal heirs
are substituted as Appellants 1 to 3 as
per order dated 28.07.2025 in
Crl.A.No.447 of 2021.]
Page No.1 of 17
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Crl.A.No.447 of 2021
Vs.
P.Gopalakrishnan,
S/o.G.T.K.Parthasarathy,
M/s.Parthasarathy Spinning Mills,
No.30, Cooperative Housing Colony,
Perks Complex Main Road,
Coimbatore-15. ... Respondent
PRAYER: Criminal Appeal is filed under Section 378 r/w 4 of Code of
Criminal Procedure, to set aside the order of acquittal dated 11.08.2018 passed
by the learned Judicial Magistrate-I, Udumalpet in C.C.No.242 of 2016.
For Appellants : Mr.A.Immanuel
For Respondent : Mr.S.Ramachandran
JUDGMENT
The appellant as complainant filed a private complaint for offence under
Section 138 of Negotiable Instruments Act, 1881 in S.T.C.No.393 of 2009
before the learned Judicial Magistrate No.III, Coimbatore against the
respondent. Later it was transferred to the file of the Judicial Magistrate Court
No.I, Udumalpet (trial Court) and renumbered as C.C.No.242 of 2016. The
trial Court by judgment dated 11.08.2018 dismissed the complaint and
acquitted the respondent. Challenging the same, the appellant preferred
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appeal before the learned District and Sessions Judge, Tiruppur along with a
petition for condonation of delay in Crl.M.P.No.1966 of 2018, but the same
was dismissed by order dated 14.12.2020 for non-prosecution and
consequently, the appeal was not taken on file. Thereafter, the appeal got
transferred to the file of this Court pursuant to the order of this Court dated
03.02.2020 in Crl.R.C.Nos.494 & 536 of 2019. Subsequently, the appeal
presented before this Court along with a petition for condonation of delay in
Crl.M.P.No.4706 of 2021 in Crl.A.SR.No.7486 of 2021 and the delay
condoned on 28.06.2021. Thereafter, leave petition in Crl.M.P.No.11297 of
2021 in Crl.A.SR.No.7486 of 2021 was filed, and by order dated 21.09.2021,
leave was granted and the present appeal was taken on file.
2.During the pendency of the present appeal, the appellant viz.,
G.E.Nelsan Nesakumar died, hence, his legal heirs viz., wife and two sons
substituted as appellants 1 to 3 by order dated 28.07.2025.
3.Gist of the case is that the respondent was running a spinning mill in
the name of M/s.K.Parthasarathy Spinning Mills and the appellant viz.,
G.E.Nelsan Nesakumar (Died) worked as Superintendent in the spinning mill
for some time and was doing yarn conversion for the respondent between 2000
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and 2001, raised bills for a sum of Rs.12.25/- lakhs. Since the respondent’s
company became sick during February 2003, M/s.Soundaraja Finance,
attempted to remove the machineries for non-payment of the loan. At that
time, the respondent borrowed Rs.3,00,000/- as hand loan from the appellant
on the promise to repay with the rate of interest of Rs.12% P.A. and also to
repay the due amount for the conversion work done by the appellant and
issued post dated cheque. The respondent made part payment of the dues from
March 2003 to January 2007. On every part payment by cash, the respondent
used to collect the previous cheque from the appellant and issue fresh cheque.
Since the respondent was not having cheques with him, at that point of time
the respondent issued a cheque of his wife Mrs.Vinitha Gopalakrishnan drawn
on Standard Chartered Bank in cheque No.042652 dated 09.10.2009 for a sum
of Rs.10,61,000/-. This cheque got dishonoured, after dishonour of this
cheque, the respondent paid Rs.65,000/- and issued the cheque No.058674
dated 22.10.2007 (Ex.P1) drawn on Central Bank of India, Udumalpet Branch
for a sum of Rs.9,96,000/-. On instruction from the respondent, when the
cheque (Ex.P1) presented for collection by the appellant on 29.10.2007, the
same returned for the reason “Funds Insufficient”. Thereafter, the statutory
notice (Ex.P3) issued on 27.11.2007 which was received by the respondent on
30.11.2007 and a reply notice (Ex.P5) sent with false and untenable
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allegations. Ignoring the same, the complaint under Section 138 of Negotiable
Instruments Act, 1881 filed before the trial Court. During trial, the appellant
examined himself as PW1 and marked Exs.P1 to P13. On the side of the
defence, no witness examined but one document marked as Ex.D1. On
conclusion of trial, the trial Court dismissed the complaint and acquitted the
respondent.
4.Learned counsel for the appellant submitted that the appellant was
running a business in the name of M/s.Sri Venkateshwara Conversions and to
prove the business transaction with the respondent, the appellant marked
carbon copies of invoices and challans Exs.P7 & P8. M/s.Sri Venkateshwara
Conversions is a partnership firm, and one Rajagopal and the appellant signed
Exs.P7 & P8. He further submitted that since the cheque (Ex.P1) issued in the
individual name of the appellant, the complaint filed by the appellant in his
individual capacity. The finding of the trial Court that in the invoices (Ex.P7
series) there is no signature of the respondent, is against the normal business
practice. In fact, the copy of the invoices (Ex.P7 series) maintained by both
parties. It was the respondent’s responsibility to take the finished goods from
the appellant after completion of the job work, and all business dealings were
conducted with the knowledge, consent and advice of the respondent. The trial
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Court failed to consider that M/s.Venkateshwara Conversions initially a
partnership firm, became a proprietorship concern after all partners retired
from the firm in 2000. In this case, the respondent neither examined himself
nor examined any witness to give explanation with respect to hand loan of
Rs.3,00,000/- during the month of February 2003 and M/s.Soundaraja Finance
attempted to remove the machineries from M/s.Parthasarathy Spinning Mills.
The appellant initially working as Superintendent in the respondent’s spinning
mill, a letter doing conversion work on job work basis during the relevant
time.
5.Learned counsel further submitted that the respondent defence is that
appellant was in-charge of business and acting as Cashier and had stolen the
respondent’s cheques, but no materials produced to prove the same except for
a suggestion. In this case, the issuance of cheque (Ex.P1) and the signature not
disputed, hence, the statutory presumption under Sections 118 & 139 of
Negotiable Instruments Act, 1881 comes into play. The trial Court failed to
consider the documents produced by the appellant to prove that on 16.10.2007,
there was an outstanding payment of Rs.9,96,000/- by the respondent. The
appellant established his case by way of documentary and oral evidence which
the trial Court not considered. The respondent failed to let in any evidence
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before the trial Court in support of his defence. The trial Court failed to
consider that though the respondent previously lodged a complaint regarding
the theft of Standard Chartered Bank cheque of his wife and disputed the
signature therein, he has not raised any such objection or defence with respect
to the cheque in the present case. The trial Court gave undue importance to the
case in Crime No.58 of 2007 dated 23.10.2007 on the file of the District Crime
Branch, Coimbatore. The appellant was managing the accounts and banking
affairs of M/s.Saradhamani Spinning Mills Private Limited and
M/s.Parthasarathy Spinning Mills, both were functioning in the same address.
Though the respondent claimed that he settled the entire dues to the appellant,
but not produced any material before the trial Court. On the other hand, the
appellant produced Exs.P1 to P13 to prove the cheque was issued in discharge
of legally enforceable debt.
6.He further submitted that when the respondent was silent with regard
to the signature found in the cheque (Ex.P1), it is confirmed that the appellant
discharged his initial burden, thereafter, the burden shifted to the respondent to
establish that the cheque was not issued in discharge of any legally enforceable
debt or liability. Such rebuttal must be made by way of cogent evidence and
materials, and cannot be done merely by filing written submissions. The
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appellant marked the undertaking letter given by M/s.Parthasarathy Spinning
Mills to the Superintendent of Central Excise (Ex.P6) to confirm that the job
work entrusted to the appellant and the appellant undertook to pay the amount
due towards cotton yarn. Ex.P9 is the cheque of the respondent’s wife drawn
on Standard Chartered Bank and Ex.P11 is the letter given by the appellant to
the District Crime Branch regarding handing over of the cheque of the
respondent’s wife. Thus, the appellant produced all relevant documents
including the invoices and challans (Exs.P7 & P8) and SMS details with
regard to conversion of materials and the dues thereof to be paid by the
respondent. Thus the appellant proved the case beyond all reasonable doubt.
But the trial Court not considered the same and dismissed the complaint, is not
proper. Hence, the judgment of the trial Court is liable to be set aside. In
support of his submissions, learned counsel for the appellant relied on the
following decisions:
(i)Relied on the decision of the Hon’ble Apex Court in Rajesh Jain v.
Ajay Singh reported in (2023) 10 SCC 148 for the point that firstly, there is a
presumption is in favour of the complainant when the drawer of the cheque
admits its issuance/execution of the cheque and secondly, where the
complainant proves that the cheque was issued/executed in his favour, the
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burden under Section 139 of the Negotiable Instruments Act, shifts to the
accused.
(ii)Further placed reliance on the decision in the case of
K.Ramachandran v. Gopi and another reported in 2025 SCC OnLine Ker
3767 for the point that as per Section 7 of the N.I.Act, a person named in the
instrument is the one to whom, or to whose order, the money is by the
instrument directed to be paid. In this case, the appellant is the person named
in the instrument.
7.Learned counsel for the respondent submitted that the complaint itself
is not maintainable since it was filed beyond the prescribed period of
limitation. In this case, after return of the cheque, the statutory notice (Ex.P3)
issued on 27.11.2007, which was served on the respondent on 30.11.2007, is
admitted by the respondent. But the complaint filed on 21.01.2008 is beyond
45 days. It is further admitted that no condone delay petition filed, hence,
taking cognizance of the complaint itself is bad in law, on that score alone, the
complaint ought to be dismissed by the trial Court. He further submitted that
the appellant admits that in the invoices (Ex.P7 series), there is no signature of
acknowledgement by the respondent. The appellant further admits that he has
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not produced any document to show he had wherewithal to give loan to the
respondent and not provided any details, when the amount paid and in what
manner it was paid. The appellant further admits that he had no knowledge
and nothing to do with M/s.Soundaraja Mills, except that mill was functioning
in Dindigul. He further admits that he is unable to produce any materials to
show that the machineries of M/s.Parthasarathy Mills were attempted to be
seized and taken away. The appellant admits that Police complaint given by
the respondent on 18.10.2007 to the District Crime Branch, Coimbatore with
regard to theft of Standard Chartered Bank cheque of the respondent’s wife.
When there was dispute and a complaint lodged against the appellant, it is
improbable that the cheque dated 29.10.2007 could have been issued by the
respondent. The FIR in Crime No.58 of 2007 marked as Ex.D1. The appellant
failed to produce any Income Tax return to show that the respondent is a
Creditor. The appellant admits that Ex.P8 does not confirm the amount due. It
was specifically suggested to the appellant that when he was employed as
Superintendent in M/s.Parthasarathy Mills, he stole the cheques of the
respondent. In the reply notice (Ex.P5), the respondent denied the liability and
stated about criminal case pending against the appellant in Crime No.58 of
2007 on the file of the District Crime Branch, Coimbatore. Thus, the
consistent defence of the respondent is that the appellant had stolen the cheque
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of the respondent when he was employed as Superintendent in
M/s.Parthasarathy Mills and filled up and misused the cheque and that there is
no legally enforceable debt or liability.
8.He further submitted that the appellant during trial, after closure of the
evidence, filed 391 Cr.P.C petition to summon the closure report of the District
Crime Branch, Coimbatore in Crime No.58 of 2007. The specific complaint
made against the appellant is for stealing of two cheques of Standard Chartered
Bank and the appellant misusing and signing the same in the name of the
respondent’s wife. During investigation, the cheque sent to Forensic
Laboratory and the Handwriting Expert confirms that the signature found in
the cheque is not that of the respondent’s wife. But the case in Crime No.58 of
2007 closed as Mistake of Fact on the ground that the appellant had taken the
portion of M/s.Parthasarathy Spinning Mills on lease and was running the mill,
further the forged cheque was not honoured and there was no misappropriation
and cheating. The appellant stealthily removed the cheque and forged the
signature of the respondent’s wife is proved. In view of the respondent having
lodged the complaint to the District Crime Branch on 18.10.2007, it is
impossible that the cheque (Ex.P1) could have been issued on 22.10.2007 by
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the respondent. Considering all these aspects, the trial Court rightly found that
the respondent probablized his defence and the appellant failed to prove the
case beyond all reasonable doubt and dismissed the complaint. Hence, the
judgment of the trial Court is a well reasoned one, needs no interference. In
support of his submissions, learned counsel for the respondent relied on the
following decisions:
(i)Relied on the decision of the Hon’ble Apex Court in John K.John v.
Tom Varghese and another reported in (2007) 12 SCC 714 for the point that
the Court was entitled to take notice of the conduct of the parties and when the
complainant not approached the Court with clean hands and when his conduct
was not that of a prudent man, in such situation then it is to be taken the
respondent has discharged his burden of proof cast on him under Section 139
of N.I Act. This principle followed by this Court in V.Ezhilvanan v.
R.Pugazhendhi reported in 2023(2)MWN (Cr.) DCC 20 (Mad.).
9.Considering the submissions and on perusal of the materials, it is seen
that on the respondent’s complaint, dated 18.10.2007 against the appellant, a
case in Crime No.58 of 2007 (Ex.D1) for offence under Sections 409, 420 &
471 IPC registered. The complaint is that the respondent and his wife
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Mrs.Vinitha Gopalakrishnan are Directors of M/s.Saradhamani Spinning Mills
Private Limited and M/s.Parthasarathy Spinning Mills and the Administrative
Office of both the concern at the same premises. The Account Department was
handling the bank accounts of concerns and the family members of the
concerns. The respondent and his wife entrusted the banking transaction to the
Accounts Department and the appellant was working as Technical Supervisor
in M/s.Parthasarathy Spinning Mills from 1993 to 2003, having reposed
confidence in him. The appellant was dealing with all financial matters
operating bank accounts of the concerns and was in custody of the cheque
books. Since the respondent company suffered financial strains, it was closed
in April 2003, thereafter, there was no transaction between the respondent and
the appellant. The appellant terminated from the service in 2003 and all his
accounts settled and got transferred his P.F. Account. The respondent
thereafter shifted his residence to Coimbatore. This being so, the respondent’s
wife received information from Standard Chartered Bank that the cheque
bearing No.042652 dated 09.10.2005 for Rs.10,61,000/- issued in the name of
the appellant came for collection. On enquiry, found that the signature of the
respondent’s wife forged. Hence, a Police complaint lodged, investigation
commenced and disputed cheque handed over to the District Crime Branch,
Coimbatore, who sent it to Forensic Laboratory and the Handwriting Expert
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confirmed the signature of the respondent’s wife is forged. This forged cheque
in possession and deposited by the appellant in his account maintained in
Central Bank of India is also not disputed. Thus, a forged cheque was used by
the appellant is proved. But the case was closed as “Mistake of Fact” for the
reason that no money paid and there was no misappropriation or cheating. The
SMS messages which were produced by the appellant along with Ex.P13
confirms there were no SMS messages sent or received to the respondlent.
Added to it, SMS messages not supported with 65B certificate. In this case,
Ex.P1 cheque is dated 22.10.2007, hence, the foundational fact of issuance of
the cheque (Ex.P1) in discharge of legally enforceable debt or liability by the
respondent, is doubtful. Added to it, the appellant relied upon Ex.P7 & P8
series, the conversion charges receipt of M/s.Sri Venkateshwara Conversions.
The appellant failed to produce any material to show that how he is connected
with M/s.Sri Venkateshwara Conversions and the respondent not signed in any
of these documents and how the amounts referred in Exs.P7 & P8 series
correspond to the cheque (Ex.P1) no explanation. The respondent on receipt
of statutory notice (Ex.P3) sent a reply (Ex.P5) disputing the transaction with
the appellant and further specifically alleged that the appellant had stolen
valuable instrument, fabricated records for illegal gain and also informed that a
case was registered against him in Crime No.58 of 2007 by the District Crime
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Branch, Coimbatore. In the cross examination, these facts specifically put to
the appellant.
10.It is to be seen that the appellant’s cross examination conducted in
detail, completed, and the appellant’s side evidence closed on 12.10.2010. The
respondent also marked Ex.D1. Thereafter, a petition under Section 391
Cr.P.C. filed and Ex.P13 the closure report marked. This closure report has no
way improves the case of the appellant. The appellant’s claim in his evidence
is that the respondent repaid the due amounts regularly from the year 2000 to
2007 and replaced the cheque, but not produced any materials to substantiate
the same. When there was dispute and a complaint was lodged against the
appellant, it is highly improbable that the cheque dated 29.10.2007 issued by
the respondent in discharge of legally enforceable debt or liability becomes
doubtful. Considering all these aspects, the trial Court rightly found that the
appellant had not come with clean hands and failed to prove his case, on the
other hand, the respondent by way of cross examination and marking Ex.D1
probablized his defence and rightly dismissed the complaint, which needs no
interference.
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11.In the result, this Criminal Appeal stands dismissed and the judgment
of acquittal dated 11.08.2018 in C.C.No.242 of 2016 passed by the learned
Judicial Magistrate No.I, Udumalpet is affirmed.
07.04.2026
Speaking order/Non-speaking order
Index: Yes/No
Neutral Citation: Yes/No
vv2
To
The Judicial Magistrate No.I,
Udumalpet.
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M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY JUDGMENT IN
07.04.2026
https://www.mhc.tn.gov.in/judis
