[Cites 11, Cited by 0]
Madras High Court
Balaraman vs Balasubramaniam on 19 February, 2026
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.234 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RERSERVED ON : 28.11.2025
PRONOUNCED ON : 19.02.2026
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.234 of 2022
Balaraman ... Petitioner
Vs.
1.Balasubramaniam
2.The Public Prosecutor,
District Court,
Coimbatore. ... Respondents
PRAYER: Criminal Revision Case is filed under Section 397 and 401 of
Code of Criminal Procedure, to set aside the order dated 11.08.2021 made
in C.A.No.63 of 2019 on the file of I Additional District and Sessions
Judge, Coimbatore reversing the order dated 23.10.2018 made in
C.C.No.551 of 2017 on the file of the Judicial Magistrate, Sulur.
For Petitioner : Mr.R.Rajarajan
For R1 : Ms.S.Sridevi
Legal Aid Counsel
Page No.1 of 16
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Crl.R.C.No.234 of 2022
ORDER
The petitioner/accused in a case filed by the respondent under
Section 138 of Negotiable Instruments Act (hereinafter referred to as “NI
Act”) in C.C.No.551 of 2017 was acquitted by the Trial Court by
judgment dated 23.10.2018. The respondent/complainant filed an appeal
in C.A.No.63 of 2019. The learned Sessions Judge by judgment dated
27.08.2019 in a haste without hearing the petitioner, set aside the
judgment of the Trial Court and convicted the petitioner. Aggrieved
against the same, the petitioner preferred a revision in Crl.R.C.No.389 of
2021 and this Court by order dated 13.07.2021 finding that the Lower
Appellate Court had reversed the judgment of the Trial Court but failed to
give opportunity and hear the petitioner to defend the case, set aside the
judgment dated 27.08.2019 and remanded the case back to the Lower
Appellate Court. Thereafter, C.A.No.63 of 2019 was heard afresh and the
learned Sessions Judge by judgment dated 11.08.2021 reversed the
acquittal of the Trial Court and sentenced the petitioner to undergo one
year simple imprisonment and directed the petitioner to pay the cheque
amount of Rs.14,35,000/- as compensation to the respondent. Against
which, the present revision is filed.
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2.The complaint filed by the respondent is that the petitioner is in
the stock market business and known to the respondent for several years.
The petitioner used to borrow money from the respondent for his
emergency expenses and repay them in short intervals. In the same
manner, the petitioner borrowed a sum of Rs.14,35,000/- from the
complainant on 29.01.2015, though assured to repay the amount within
three months but failed to pay. After several requests and repeated
demands, the petitioner issued a cheque bearing No.173960 dated
28.10.2016 for Rs.14,35,000/- of Union Bank, Coimbatore. The cheque
was presented on 02.11.2016 by the respondent in his name at Karur
Vysya Bank, Somanur, but the cheque not honored and returned on
04.11.2016 for the reason "funds insufficient." Thereafter, statutory notice
issued on 09.11.2016 and the petitioner received the notice on 15.11.2016
but he neither paid the cheque amount nor sent any reply.
Thereafter, complaint filed. In this case, the complainant examined
himself as PW1 and marked Ex.P1 to Ex.P8. The respondent examined
himself as DW1 and marked Ex.D1 to Ex.D8.
3.The learned counsel for the petitioner/accused submitted that the
Trial Court considered the evidence in its totality and found that the
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petitioner had probabilized his defence and there was no loan taken by the
petitioner from the accused, it was the respondent who invested in share
trading business and the petitioner, as a share broker, was advising him
and giving suggestions. In the share trading business, the respondent lost
some money and believing that this loss was sustained only due to wrong
advice of the petitioner, the respondent misused the cheque which was
given by the petitioner for an earlier transaction taking a loan of
Rs.45,000/-, a sum of Rs.14,35,000/- filled up and projected as though the
petitioner received the same as loan. To disprove the same, the petitioner
examined himself as DW1 and marked eight documents. The petitioner
in his evidence as DW1 admitted that the petitioner and the respondent
known to each other from the year 2006 and the respondent employed in
the firm of one Moorthy who was having a share trading account with the
petitioner and thereafter, the respondent shown interest in the share
trading and invested in the share trading business and later suffered some
loss. To prove the same, he marked the statement of accounts/Ex.D6 for
the period 01.01.2015 to 24.01.2018, Ex.D7 and Ex.D8 are the Statement
of Accounts of Net worth Stock Broking Limited to show that the
respondent was doing stock investment through the petitioner. Ex.D1 to
Ex.D4 are the copies of the cheques issued for the stock broking business.
The respondent in his evidence denied any business in stock broking with
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the petitioner or Net worth Stock Broking Limited, which got exposed
when the petitioner examined himself as DW1 and marked documents.
The respondent could not deny the evidence of the petitioner. Further, the
petitioner questioned the wherewithal of the respondent to give a loan of
such huge amount. The respondent unable to give details about when,
where and how this amount paid to the petitioner and further not able to
produce any contemporary documents to show that he had such huge
amount with him. On the other hand, the respondent produced Ex.P5 to
Ex.P8/income tax returns for the period 2015 to 2017, from which, it is
seen that no such amount of Rs.14,35,000/- shown as credit in the name
of the petitioner. Considering all these aspects, the Trial Court rightly
dismissed the complaint and acquitted the petitioner. But the Lower
Appellate Court merely gone on surmises and conjunctures reversed a
well reasoned judgment of acquittal and the judgment of the Lower
Appellate Court is bereft of any consideration of facts. The Lower
Appellate Court on perusal of case records EX.P1 to Ex.P8 and Ex.D1 to
Ex.D8 gave a finding that it is a definite case of the complainant that the
petitioner borrowed a sum of Rs.14,35,000/- from the respondent on
29.01.2015 and issued a cheque/Ex.P1, further referred to cross
examination of DW1 wherein the petitioner admitted that he borrowed a
sum of Rs.45,000/- and issued a cheque but to substantiate the same, he
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had not sent any reply to the statutory notice and further referring to
Section 20 of NI Act, justified that the cheque can be filled up and
presented by the payee. Further Ex.P5 to Ex.P8 are the income tax
returns of the complainant, from which it is seen that he is doing Textile
business and thereby confirming he has got wherewithal to pay the
amount of Rs.14,35,000/-, further finding statutory presumption under
Sections 118 and 139 of NI Act proved, reversed the judgment of
acquittal and convicting the petitioner is not proper.
4.In support of his contention, the learned counsel for the petitioner
relied upon the decision of the Apex Court in the case of Chandrappa
and others vs. State of Karnataka reported in (2007) 4 SCC 415, wherein
the principles regarding the power of the Appellate Court while dealing
with the appeal against the order of acquittal had been codified, which is
as follows:
42. From the above decisions, in our considered
view, the following general principles regarding powers of
the appellate court while dealing with an appeal against
an order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
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limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted conclusions”,
“glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the
reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double presumption in
favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall
be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by the
trial court.
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5.The learned counsel for the petitioner also relied upon the
decision of the Apex Court in the case of Shree Daneshwari Tradeers vs.
Sanjay Jain and another reported in (2019) 16 SCC 83 wherein it is held
that To rebut the statutory presumptions, an accused is not expected to
prove his defence beyond reasonable doubt as is expected of the
complainant in a criminal trial. It is further held that To disprove the
presumptions, the accused should bring on record such facts and
circumstances, upon consideration of which, the court may either believe
that the consideration and debt did not exist or their non-existence was
so probable that a prudent man would under the circumstances of the
case, act upon the plea that they did not exist. Apart from adducing direct
evidence to prove that the note in question was not supported by
consideration or that he had not incurred any debt or liability, the
accused may also rely upon circumstantial evidence and if the
circumstances so relied upon are compelling, the burden may likewise
shift again on to the complainant.
6.The learned counsel for the respondent strongly opposed the
petitioner's contention and submitted that the petitioner had not denied the
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issuance of cheque/Ex.P1 and signature. The only defence taken by him is
that for an earlier transaction of Rs.45,000/-, the petitioner issued a blank
cheque which has been filled up. As rightly held by the Lower Appellate
Court, Section 20 of the NI Act gives the authority to the person to fill up
the cheque and present the same. In this case, the respondent had done so.
Further, the respondent to prove his financial capabilities marked income
tax returns/Ex.P5 to Ex.P8 and the same not seriously challenged. He
further submitted that the petitioner projected as though he was doing
share brokering business and the respondent invested in the share market,
for which, the petitioner examined himself as DW1 and marked eight
documents, but not produced any document to show that he is a
authorized share broker. Ex.D1 to Ex.D5 are the copies of the cheques
which are for meagre amount of Rs.10,000/- and Rs.5,000/-. In this case,
Ex.P1 is for Rs.14,35,000/-. Though the respondent takes a stand that one
Moorthy, a relative of respondent’s employer is known to him for the past
10 years through whom the petitioner known to him, the said Moorthy
was not examined in this case. Further, the respondent not informing this
transaction with the petitioner to his wife and relatives are blown out of
proportion. Likewise, not collecting the promissory note or other
supporting documents other than the cheque for the loan is also viewed
against the respondent, which is not proper. It is the petitioner who had
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claimed that he was doing business in the name of Networth Stock
Broking Limited, the respondent had given a part amount of
Rs.8,00,000/- of loan through a cheque, which is not seriously disputed.
Further, the respondent also produced the income tax retuns/Ex.P5 to
Ex.P8. The petitioner, in his evidence, admits that he handed over the
signed blank cheque to the respondent. The petitioner, claiming himself to
be a stock exchange broker and paid commission to the respondent but
not produced any supporting documents and it is highly improbable that a
person who is active in stock broking business will give a blank cheque
without any liability. The petitioner not denied issuance of cheque and his
signature. The Trial Court misread the evidence and dismissed the
complaint but the Lower Appellate Court, on consideration of evidence
and materials, found the admission of DW1 issuing the cheque and not
replying to the statutory notice and referred to Section 20 of NI of Act. In
the absence of the petitioner not probabilizing his defence with any
supporting materials, the Trial Court rightly held that it is on the
petitioner to discharge the onus of statutory presumption under Sections
118 and 139 of NI Act which the petitioner failed to do so and hence, set
aside the judgment of the Trial Court and convicted the petitioner.
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7.In support of her contention, the learned counsel for the
respondent relied upon the decision of the Apex Court in the case of
Sanjabij Tari vs. Kishore S.Borcar and another reported in 2025 SCC
Online 2069 for the point that when the financial capacity of the
complainant is questioned and the complainant though produced the
income tax returns to show that he is the man of means, if it is further
doubted then the presumption under Sections 118 and 139 of NI Act can
be rebutted by the accused examining the Income Tax Officer and Bank
Officials of the complainant/drawee.
8.Considering the submissions made and on perusal of the
materials, it is clear that in this case the complainant was examined as
PW1 and marked eight documents. The specific case of the complainant
is that the petitioner for his share market business needed money and took
loan from the respondent. The respondent has a monthly income of
Rs.1,00,000/- and a yearly income of Rs.12,00,000/- and hence, he has
the wherewithal to give a loan. Further, he collected Rs.5,00,000/- from
his friend Ramasamy and Rs.3,00,000/- from his wife Subulakshmi and
with the amount available with him, had given a loan of Rs.14,35,000/- to
the petitioner. In this case, neither the said Ramasamy nor Subulakshmi,
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wife of respondent or the said Moorthy examined as witnesses. The
respondent specifically denied in his evidence that he is not involved in
share market business and he does not know what share trading is about.
He admits that neither in the statutory notice nor in the complaint or in his
evidence he referred to any share business. Though he states that he gave
Rs.8,00,000/- to the petitioner by way of cheque, not produced any
material to confirm Rs.8,00,000/- was paid to the account of the petitioner
through cheque. When a specific question was put to the respondent
involved in share trading business from the year 2007 to 2015, he stoutly
denied the same and also feigned ignorance about the petitioner as a share
broker. When a specific question was put with regard to the transfer of
money from the respondent's account to Networth Stock Broking
Limited, then to he denied. The respondent admits that the loan given to
the petitioner does not reflect in his income tax returns/Ex.P5 to Ex.P8.
Further, Ex.D1 to Ex.D5, marked through the respondent, are the cheques
issued for the share broking business. The respondent's wherewithal has
been questioned. Added to it, in this case, the petitioner examined himself
as DW1 and marked statements of accounts/Ex.D6 to Ex.D8,from which,
the transaction of the Network Stock Broking Limited
confirms payment received by the respondent and his wife Subulakshmi.
Thus, the petitioner probabilized his defence that it was only a share
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broking business, the petitioner was a share broker and the respondent
who invested in the share market had a misfortune on a wrong prediction
and calculation and lost some money in share trading business, later the
blank cheque of the petitioner misused, clearly probabilized by way of
cross-examination and by examining the defence witness and marking
defence documents. These facts rightly considered by the Trial Court and
thereafter, the trial court dismissed the complaint discharging the
petitioner. The Lower Appellate Court had merely gone on the fact that
the signature in Ex.P1/cheque is not disputed and statutory presumption
under Sections 118 and 139 of NI Act, 1881 is against the petitioner
without any discussion on the evidence and materials and failed to show
any perversity committed by the Trial Court. In the absence of any such
finding of perversity, reversing the judgment of acquittal, is not proper.
In view of the above, the finding of the lower appellate Court is not
sustainable and the same is liable to be set aside.
9.The Hon'ble Apex Court as well as this Court time and again had
held that when two views possible unless there is perversity and gross
miscarriage of justice, the judgment of acquittal not to be disturbed.
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10.Accordingly, this Court set asides the judgment, dated
11.08.2021 in Crl.A.No.63 of 2019 passed by the learned I Additional
District and Sessions Judge, Coimbatore and confirms the judgment,
dated 23.10.2018 in C.C.No.551 of 2017 passed by the learned Judicial
Magistrate, Sulur.
11.In the result, this criminal revision case stands allowed.
12.This Court appreciates Ms.S.Sridevi, Legal Aid Counsel 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.
19.02.2026
Speaking Order/Non Speaking Order
Index : Yes/No
Neutral Citation: Yes/No
cse
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To
1.The I Additional District and Sessions Judge,
Coimbatore.
2.The Judicial Magistrate,
Sulur.
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M.NIRMAL KUMAR, J.
cse
Pre-delivery order made in
19.02.2026
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