[Cites 8, Cited by 0]
Madras High Court
Narendran vs K.Vijayan on 21 January, 2026
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.150 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.11.2025
PRONOUNCED ON : 21.01.2026
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.150 of 2022
Narendran ... Appellant
Vs.
K.Vijayan ... Respondent
PRAYER: Criminal Appeal is filed under Section 378(4) of Code of Criminal
Procedure, to set aside judgment dated 29.01.2020 of the Judicial Magistrate I,
Perambalur in STC.No.90 of 2015 acquitting the accused of the offence
punishable u/s 138 of Negotiable Instruments Act and to allow the STC.No.90
of 2015 and to punish the accused with maximum punishment.
For Appellant : Mr.T.Saikrishnan
For Respondent : Ms.J.Hakshara Shree,
Legal Aid Counsel
Page No.1 of 12
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Crl.A.No.150 of 2022
JUDGMENT
The appellant as complainant filed private complaint for offence under
Section 138 of Negotiable Instruments Act, 1881 in STC.No.90 of 2015 before
the learned Judicial Magistrate No.I, Perambalur (trial Court) against the
respondent. The trial Court by judgment dated 29.01.2020 dismissed the
complaint and acquitted the respondent. Against which, present criminal
appeal filed.
2.Despite service of notice to the respondent and his name printed in the
cause list, there was no representation for the respondent either in person or by
any counsel. Hence, this Court by order dated 30.10.2025 appointed
Ms.J.Hakshara Shree as Legal Aid Counsel for the respondent.
3.Gist of the case is that the respondent borrowed a sum of
Rs.3,00,000/- (Rupees three lakh only) from the appellant on 15.10.2012 for
his business purpose and promised to repay within one month from the date of
loan received. But the respondent never repaid the loan amount, after repeated
request, the respondent in repayment of loan issued a cheque (Ex.P1) bearing
No.325357 dated 25.12.2012 for a sum of Rs.3,00,000/- (Rupees three lakh
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only) drawn on the Lakshmi Vilas Bank, Perambalur to the appellant. When
the cheque presented in the complainant's bank account viz., Indian Overseas
Bank, Red Fields Branch, Coimbatore on 25.12.2012, the same returned for
the reason “Insufficient Funds” on 28.12.2012. Thereafter, statutory notice
(Ex.P3) dated 05.01.2013 issued to the respondent who received the same on
07.01.2013. But neither paid the cheque amount nor sent any reply.
Following statutory procedure, complaint filed before the trial Court. During
trial, the appellant examined himself as PW1 and marked Exs.P1 to P4. The
respondent examined himself as DW1 and marked Exs.D1 to D8. On
conclusion of trial, the trial Court dismissed the complaint and acquitted the
respondent. Challenging the same, present criminal appeal filed by the
appellant/complainant.
4.Learned counsel for the appellant/complainant submitted that the trial
Court failed to consider that the cheque (Ex.P1) duly presented, it was sent to
Indian Overseas Bank for encashment, thereafter, the cheque (Ex.P1) returned
for the reason “Insufficient Funds” by return memo (Ex.P2) dated 28.12.2012.
He further submitted that appellant examined himself as PW1 and marked
Exs.P1 to P4. The respondent in this case received statutory notice (Ex.P3)
and postal acknowledgment (Ex.P4) confirms the same. The appellant was
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cross examined in detail by the respondent, at that time, he took a stand that
the appellant belongs to Coimbatore district and the respondent hails from
Perambalur which is 200 km far away place and there is no reason for
appellant giving loan to the respondent when there is no other relationship
between them. Further, the appellant's financial capability questioned, the
appellant confirmed he was running lorry transport business and had sufficient
income to lend a loan. The appellant was questioned with regard to Income
Tax Returns, thereafter respondent failed to probablize his defence that
appellant had no source of income and he was not a man of resources. The
respondent admits registered sale agreement in document No.5002 of 2011
dated 17.08.2011 between appellant and respondent and the sale to be
concluded within 11 months. In this case, respondent failed to complete
payment and conclude the agreement, a legal notice for the sale transaction
issued. The specific case is that the cheque (Ex.P1), given at the time entering
sale agreement, filled up during December 2012.
5.Learned counsel for the appellant further submitted that the respondent
cross examined in detail with regard to sale agreement, issuance of power of
attorney, cancellation of power of attorney, the appellant's father-in-law
Ramasamy filing civil suit in O.S.No.96 of 2013 before the Subordinate Court,
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Peramabalur, filling up of promissory note and demanding the repayment of
Rs.6,00,000/- with interest. Further the respondent examined himself as DW1
and marked Exs.D1 to D8. The sale agreement marked as Ex.D1, power of
attorney between appellant and respondent marked as Ex.D2, cancellation of
power of attorney marked as Ex.D3, written statement filed in O.S.No.96 of
2013 marked as Ex.D4, encumbrance certificate for the property marked as
Ex.D5, the plaint in O.S.No.96 of 2013 marked as Ex.D6, notice issued by
appellant's father-in-law prior to filing of civil suit marked as Ex.D7 and reply
notice marked as Ex.D8. The trial Court failed to consider the fact and
relevancy of the case, but rendered the judgment of acquittal referring to
Sections 58, 106, 145 & 155(3) of Indian Evidence Act, 1872 and Sections 118
& 139 of Negotiable Instruments Act, 1881. Added to it, the trial Court failed
to consider the entire evidence and material in proper perspective and came to
conclusion, there was some transaction between appellant's father-in-law
Ramasamy and respondent, which the appellant not disclosed in the statutory
notice, complaint or in his evidence, until confronted by the defence and hence
gave benefit of doubt and dismissed the complaint.
6.In support of his contention, learned counsel for the appellant relied on
the decision of the Hon'ble Apex Court in the cases of Shree Daneshwari
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Traders v. Sanjay Jain and another reported in (2019) 16 SCC 83 and
Rohitbhai Jivanlal Patel v. State of Gujarat and another reported in (2019)
18 SCC 106 for the point that it is for the respondent-accused to adduce
evidence to prove that the cheques were not supported by consideration and
there was no debt or any liability to be discharged by him and for the point that
when the respondent had not denied his signature on the cheques and when the
cheques were presented to the Bank within the period of their validity and
returned unpaid for either insufficient funds or account being closed, the basic
ingredients under Sections 138, 118 & 139 of Negotiable Instruments Act,
1881 are apparent on the face of the record. In view of the above, the revision
to be allowed and the appellant to be convicted.
7.Learned counsel for the respondent submitted that the appellant had
not come with clean hands. The case projected by the appellant as per
statutory notice (Ex.P3) is that on 15.10.2012, the respondent borrowed a sum
of Rs.3,00,000/- as hand loan for development of business and to repay the
loan amount, the cheque (Ex.P1) dated 25.12.2012 issued, the cheque
presented, thereafter, complaint filed. Nowhere in the statutory notice (Ex.P3)
it is mentioned that how the respondent, a resident of Perambalur came in
contact with appellant, a resident of Coimbatore and what was the relationship
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between them and how the appellant gained confidence and gave loan. More
particularity, the appellant in his evidence admits that the respondent resides
200 km far away from the appellant and they had no common business
between them. Further appellant admits he has not lent any loan to anybody
and for the first time, gave loan to the respondent. Learned counsel further
submitted that the respondent examined himself as DW1 and marked (i)sale
agreement in document No.5002 of 2011 dated 17.08.2011 as Ex.D1, (ii)power
of attorney (Ex.D2) dated 10.11.2011 as Ex.D2, (iii)cancellation of power of
attorney dated 26.03.2013 as Ex.D3, (iv)written statement dated 05.02.2014
filed by the respondent in O.S.No.96 of 2013 as Ex.D4, (v)encumbrance
certificate confirming sale agreement between appellant and respondent as
Ex.D5, (vi)plaint copy of civil suit filed by appellant's father-in-law in
O.S.No.96 of 2013 dated 13.09.2013 as Ex.D6, (vii)notice issued by
appellant's father-in-law as Ex.D7 and (viii)reply notice in the civil suit dated
06.08.2013 as Ex.D8. When these documents were confronted and put to the
appellant, he denied the same, thereby, completely suppressed true facts of the
case. The specific case of the respondent is that there was a registered sale
agreement between appellant and respondent (Ex.D1) for sale of land;
according to Ex.D1, the sale to be completed within stipulated period; at the
time of executing Ex.D1, promissory note and three signed blank cheques
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received by the appellant; one of the signed blank cheque filled up and false
case projected against the respondent. The admitted position is that there was
civil dispute between appellant and respondent. The appellant using his father-
in-law Ramasamy filed civil suit (O.S.No.96 of 2013) using promissory note
and also filed 138 complaint using one of the security cheque issued. Thus, it
is clear that as arm-twisting and to somehow exert pressure to the respondent,
the present complaint filed against the respondent. The trial Court on proper
analysis of evidence and materials rightly came to conclusion that the
appellant had not come with clean hands and the respondent probablized his
defence by way of examining himself as DW1 and marking defence
documents as Exs.D1 to D8 and dismissed the complaint, acquitted the
respondent from the case. Hence, he prayed for dismissal of the appeal
confirming judgment of acquittal.
8.Learned counsel for the appellant by way of reply submitted that the
civil suit in O.S.No.96 of 2013 decided in favour of appellant by judgment
dated 29.09.2023. In the civil suit written statement, respondent admits
handing over of cheque in dispute (Ex.P1) to the appellant. Nowhere in the
civil suit, the defence that liability to the cheque, discharged taken.
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9.Considering the submissions and on perusal of the materials, it is seen
that appellant prior to filing complaint under Section 138 of Negotiable
Instruments Act, 1881, issued statutory notice (Ex.P3) to respondent. The
statutory notice is with regard to issuance of cheque (Ex.P1) by respondent and
dishonour of cheque (Ex.P1) and filing of complaint there is no details further
given. Even in the complaint and in sworn statement, there is no reference to
any of earlier transaction between appellant and respondent. When the
appellant was cross examined by the respondent, the appellant was specifically
questioned with regard to earlier sale agreement (Ex.D1), power of attorney
(Ex.D2), cancellation of power of attorney (Ex.D3), filing of civil suit by
appellant's father-in-law and other aspects. The appellant denied the same and
feigns ignorance. The sale agreement is a registered document in No.5002 of
2011 dated 17.08.2011, power of attorney is document No.331 of 2011 dated
10.11.2011, cancellation of power of attorney is document No.1317 of 2013
dated 26.03.2013. These documents clearly referred to in the civil suit notice
and its reply (Exs.D7 & D8). In this case, the proof affidavit filed on
20.11.2018, but there is no reference about these registered documents and the
transactions between appellant and respondent, all details disclosed by the
respondent when he examined himself as defence witness (DW1) and marked
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documents as defence exhibits (Exs.D1 to D8). It is apparent that the appellant
had not come with clean hands and he suppressed material facts.
10.Now the civil Court judgment in O.S.No.96 of 2013 produced by the
appellant. In the civil suit, the specific stand is that at the time of sale
agreement, a promissory note and signed blank security cheques collected
from the respondent. One of the cheque filled up and the complaint filed.
Hence cheque issued pursuant to the sale agreement as security and cheque not
in discharge of any loan liability.
11.On proper appreciation of evidence and materials the trial Court
rightly held that the respondent probablized his defence by way of defence
witness and documents and the appellant failed to prove the case beyond all
reasonable doubt.
12.In view of the above, this Court finds no reason to interfere with the
judgment of acquittal dated 29.01.2020 in STC.No.90 of 2015 passed by the
learned Judicial Magistrate No.I, Perambalur and the same is hereby
confirmed.
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13.In the result, this Criminal Appeal stands dismissed. This Court
appreciates Ms.J.Hakshara Shree, Legal Aid Counsel for the respondent for
meticulous preparation.
21.01.2026
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
vv2
To
The Judicial Magistrate No.I,
Perambalur.
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M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY JUDGMENT IN
21.01.2026
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