[Cites 8, Cited by 0]
Madras High Court
G.Raja vs V.S.Selva Vinayagam on 16 April, 2026
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.254 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.02.2026
PRONOUNCED ON : 16.04.2026
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.254 of 2022
G.Raja ... Appellant
Vs.
V.S.Selva Vinayagam ... Respondent
PRAYER: Criminal Appeal is filed under Section 378(5) of Code of Criminal
Procedure, to call for the entire records from the file of the Judicial Magistrate,
Thiruvotriyur in S.T.C.No.2562 of 2017 and order to set aside the judgment
dated 22.11.2021 and order to convict the accused and also impose
compensation under Section 357 of Cr.P.C.
For Appellant : Mr.T.Jaishankar
For Respondent : Mr.V.Paarthiban for Mr.N.Jayabalan
JUDGMENT
The appellant as complainant filed a private complaint for offence under
Section 138 of Negotiable Instruments Act, 1881 in S.T.C.No.2562 of 2017
against the respondent before the learned Judicial Magistrate, Thiruvotriyur
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(trial Court). The trial Court by judgment dated 22.11.2021 dismissed the
complaint and acquitted the respondent. Against which, the present Criminal
Appeal is filed.
2.Gist of the case is that the appellant and the respondent are family
friends. The respondent orally agreed to sell the property situated at No.62A,
New Street, Kaladipet, Thiruvotriyur, Chennai for sale consideration of
Rs.20,00,000/- (Rupees twenty lakhs only) by cash on various dates. On
receipt of the said amount, the respondent again demanded further excess
amount of Rs.10,00,000/- (Rupees ten lakhs only) from the appellant, thereby
the respondent wantonly evaded registration of sale deed. On repeated
demand and request made by the appellant, the respondent not agreed for
registration of sale deed, instead returned the sale consideration of
Rs.20,00,000/- by way of cheque (Ex.P1) bearing No.428762 dated 02.02.2017
drawn on ICICI Bank, Anna Nagar West Extension, Branch, Chennai in favour
of the respondent, towards discharge of the liability. When the appellant
presented the said cheque for encashment in Canara Bank, Thiruvotriyur
Branch, Chennai, the same returned for the reason “Payment Stopped by the
Drawer” on 04.03.2017. Thereafter, the appellant issued statutory notice
(Ex.P3) dated 24.03.2017 to the respondent, received by him on 25.03.2017,
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and sent an evasive reply dated 11.04.2017 (Ex.P5). Ignoring the same,
complaint under Section 138 of Negotiable Instruments Act, 1881 filed.
During trial, the appellant examined himself as PW1 and marked Exs.P1 to P5.
On the side of the defence, no witness examined but the plaint copy in
O.S.No.50 of 2017 and O.S.No.48 of 2017 marked as Exs.D1 & D2. On
conclusion of trial, the trial Court dismissed the complaint and acquitted the
respondent.
3.Learned counsel for the appellant submitted that the trial Court gave a
finding that the cheque (Ex.P1) and the signature of the respondent is not
disputed, hence, statutory presumption under Sections 118 & 139 of
Negotiable Instruments Act, 1881 is proved. Having come to such conclusion,
the trial Court dismissing the complaint, is not proper. He further submitted
that the trial Court disbelieving the case of the appellant on the ground that
merely on oral agreement such huge amount paid without any contemporary
documents, is not proper. In this case, the appellant and the respondent known
to each other for the past 17 years. According to the appellant, he was a tenant
under the respondent for two portions in Door Nos.62/1 and 62A. Due to long
acquaintance, the respondent agreed to sell the property at Door No.62A for
total sale consideration of Rs.20,00,000/-. The appellant initially paid
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Rs.10,00,000/- and thereafter paid Rs.50,000/- per month, totalling
Rs.18,00,000/-. The respondent himself calculated and confirmed the receipt
of amount of full sale consideration of Rs.20,00,000/- and agreed to sell the
property. Despite receipt of such huge amount, the respondent later demanded
additional Rs.10,00,000/-, as a result of which, the sale could not be
concluded. In discharge of the liability, the respondent issued a cheque
(Ex.P1) for Rs.20,00,000/- to the appellant. This fact not properly considered
by the trial Court.
4.He further submitted that the respondent in the reply notice (Ex.P5)
admitted the relationship with the appellant, but propounded a new theory that
the appellant was taking care of the respondent’s properties, by collecting rents
from the co-tenants and handing them over to the respondent, and later failed
to hand over the rents collected from the co-tenants. Further the appellant also
collected rents for Mudichur flat and Thoraipakkam flat and not paid the
amount and it is the appellant who has to pay a sum of Rs.10,36,400/- to the
respondent, but in the reply notice (Ex.P5), the respondent admitted the long
association with the appellant.
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5.He further submitted that the trial Court placed reliance on the civil
suits filed by the appellant in O.S.No.48 of 2017 and O.S.No.50 of 2017 and
rent control proceedings filed by the respondent in R.C.O.P.No.9 of 2017. The
suits filed during March 2017, hence, issuance of the cheque (Ex.P1) in
February 2017, is not possible. In the suits, the appellant took a stand that he
paid a lease amount of Rs.7,50,000/- for the property at No.62/1 and
Rs.10,00,000/- for the property at No.62/A. In such circumstances, the trial
Court found that the question of purchasing the respondent’s property, handing
over the sale consideration to the appellant and issuing the cheque (Ex.P1) in
discharge of the liability would not arise.
6.He further submitted that the trial Court failed to consider that as per
the civil suits, the appellant already paid Rs.17,50,000/- to the respondent and
also paid Rs.50,000/- monthly, totalling Rs.20,00,000/- is proved. In such
circumstances, questioning the wherewithal of the appellant is not proper. The
trial Court failed to consider that the respondent admits that he filed
R.C.O.P.No.9 of 2017. The respondent’s explanation that a signed blank
cheque given to the appellant for the purpose of obtaining metro water
connection, was filled up and misused, which is false since the metro water
connection and sewage connection already provided as early as 2005. In such
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circumstances, handing of blank signed cheque (Ex.P1) in the year 2017 would
not arise. The trial Court finding that the appellant is unable to produce any
account or document to substantiate he paid the amount to the respondent, is
not proper. 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 D.K.Chandel v.
M/s.Wockhardt Ltd., & Anr., reported in (2020) 13 SCC 471 wherein it had
held that production of account books/cash books can be relevant in civil Court
but not to be so in criminal cases filed under Section 138 of Negotiable
Instruments Act, 1881.
(ii)Further relied on the decision of the Hon’ble Apex Court in
T.Vasanthakumar v. Vijayakumari reported in (2015) 8 SCC 378 wherein it
had held that when the issuance of the cheque and its signature is not disputed,
the presumption mandated under Section 139 includes a presumption that there
exist a legally enforceable debt or liability. Though it is in the nature of the
rebuttal presumption, it has to be raised by the accused in defence and the
initial presumption always favours the complainant.
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(iii)Placed reliance on the decision of the Hon’ble Apex Court in
C.S.Prasad v. C.Satyakumar and others reported in Criminal Appeal No.140
of 2026 for the point that it is settled principle in criminal jurisprudence that
civil liability and criminal liability may arise from the same set of facts and
that the pendency and conclusion of the civil proceedings does not bar
prosecution where the ingredients of the criminal offence are disclosed.
(iv)Further placed reliance 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
once the presumption under Section 139 given effect to, the Court ought to
have proceeded on the premise that the cheque was issued in discharge of
debt/liability. The entire focus would then necessarily have to shift on the case
set up by the accused, since the activation of the presumption has the effect of
shifting the evidential burden on the accused.
(v)Referring to the decision of the High Court of Calcutta in the case of
Kausik Barui v. Kartick Chandra Basu & Anr. in C.R.R.No.969 of 2015
dated 28.01.2026 for the point that even in the absence of the written
agreement, the complainant has established its claim and the liability of the
Petitioner, the complaint is well maintainable unless it is rebuttable.
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7.Making the above submissions and relying upon the above decisions,
learned counsel for the petitioner prays for setting aside the trial Court
judgment.
8.Learned counsel for the respondent submitted that in this case, the
appellant was a tenant under the respondent. The respondent initially resided
at Thiruvotriyur and later shifted his residence to Anna Nagar for education of
his children and he got employed abroad. Hence, the appellant, who was
initially a tenant for a shop, later became tenant for residential portion at Door
No.62/1. Further, the appellant was a tenant right from the year 2005, hence,
they had good relationship. Since the respondent moved out of Thiruvotriyur,
the appellant permitted to collect rents from the co-tenants of Thiruvotriyur
property. Since the appellant gained confidence, he was entrusted with the
property viz., Mudichur Flat and Okkiyam Thoraipakkam Flat. Later, it came
to know that the appellant collected the lease amount from the Mudichur flat
but not informed or paid the lease/rent amount to the respondent. Similarly,
lease amount for Thoraipakkam property not paid. Hence, dispute arose in this
regard from the year 2015. The respondent sent a lawyer notice on 18.03.2017
calling upon the appellant to pay the collected tenancy amount of
Rs.10,36,400/- in respect of the respondent’s properties, which was received
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on 20.03.2017 and not seriously disputed. Further in the reply notice (Ex.P5),
the respondent gave details of how the properties purchased and from which
period, the appellant became a tenant of the shop and thereafter of the
residential portion. The respondent shifted his residence from Thiruvotriyur to
Anna Nagar in the year 2005, hence, the appellant permitted to collect the rent
from the co-tenants. It is to be seen that in the year 2009, the appellant asked
for a loan and received Rs.3,00,000/- which was paid through cheque. In the
reply notice (Ex.P5) in para 11, the details of the amount payable by the
appellant was set out. These facts not seriously disputed by the appellant,
9.Learned counsel further submitted that the respondent marked Exs.D1
& D2 the plaint copy of the civil suits filed by the appellant. In the plaint
copy, the admission by the appellant is that he took the property at Door
No.62/A on lease on 09.02.2015 by paying a lease amount of Rs.10,00,000/-
and also took the property at Door No.62/1 by paying the lease amount of
Rs.7,50,000/- on 09.02.2015. This clearly shows that the appellant is a tenant.
Whether any amount received is a matter to be decided by the civil Court. The
admission of the appellant is that he was on lease and paid Rs.17,50,000/- as
lease amount to the respondent. The appellant not denied filing of
R.C.O.P.No.9 of 2017 by the respondent. Hence, the appellant and the
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respondent had a landlord tenant relationship and the property was never
intended to be sold to the appellant. In the reply notice (Ex.P5), the appellant
was called upon to return the signed blank cheque handed over to him for
payment towards metro water pipeline connection. This cheque (Ex.P1) filled
up, misused and false case projected against the respondent. Though the trial
Court found that the cheque (Ex.P1) and its signature not disputed and that the
statutory presumption under Sections 118 & 139 of N.I. Act comes into play,
the trial Court rightly found that the respondent probablized his defence and
the appellant failed to prove the case beyond all reasonable doubt based on the
cross examination and defence exhibits. In view of the above, the present
criminal appeal is liable to be dismissed.
10.Considering the submissions and on perusal of the materials, it is
seen that the landlord-tenant relationship between the appellant and respondent
is not disputed. The appellant’s own admission in Exs.D1 & D2 is that he took
the respondent’s property on lease. It is not in dispute that the respondent filed
R.C.O.P.No.9 of 2007 against the appellant. The appellant is in possession and
still occupied the respondent’s property as tenant is also not disputed. Only
when the appellant vacates the premises, he is entitled for the lease amount if
any paid to the respondnet. In this case, in the reply notice (Ex.P5), the
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respondent gave the details of the purchase of properties bearing Door No.62/1
and 62/A in the year 1993 and 2003. Further, the appellant initially became a
tenant for one shop portion and thereafter, when the respondent shifted his
residence to Anna Nagar in the year 2005, the appellant took the residential
portion at Door No.62/1 on tenancy. The appellant collected the lease amount
from Mudichur flat but not informed the respondent nor paid the lease amount
or rent. Similarly, lease amount relating to Thoraipakkam property collected
but not paid to the respondent and there was dispute in this regard from the
year 2015.
11.It is to be noted that the respondent stood as a surety for the appellant
to purchase a taxi in June 2016. Thereafter, the respondent found that the
appellant misappropriated the rents collected for his properties, not only at
Kaladipet but also for flats at Mudichur and Thoraipakkam, and issued a notice
dated 18.03.2017, received by the appellant on 20.03.2017. These facts are
recorded in the reply notice (Ex.P5). The appellant admits that after receipt of
Ex.P5, no rejoinder sent to the reply. In cross examination, all these facts put
in detail to the appellant and Exs.D1 and D2 marked. Considering all these
facts and finding that the respondent probablized the defence and the appellant
failed to prove the case beyond all reasonable doubt, the trial Court rightly
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dismissed the complaint and acquitted the respondent.
12.In view of the above, this Court finds no reason to interfere with the
judgment of acquittal dated 22.11.2021 in S.T.C.No.2562 of 2017 passed by
the learned Judicial Magistrate, Thiruvotriyur and the same is hereby affirmed.
13.The decisions relied upon by the learned counsel for the appellant is
not at all applicable to the facts and circumstances of the present case.
14.In the result, this Criminal Appeal stands dismissed.
16.04.2026
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
vv2
To
The Judicial Magistrate,
Thiruvotriyur.
https://www.mhc.tn.gov.in/judis
M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY JUDGMENT IN
16.04.2026
https://www.mhc.tn.gov.in/judis
