Appeal filed against acquittal under Section 138 NI Act regarding a dishonoured cheque issued as a hand loan. High Court found defence version probable as complainant failed to prove initial transaction and did not examine her financier husband. Appeal dismissed.
Criminal Appeal dismissed; judgment of acquittal upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.05.2018
CORAM:
THE HON'BLE MR.JUSTICE P.RAJAMANICKAM
Crl.A.No.594 of 2009
T.Saroja ... Appellant/Complainant Vs. M.Sasikala ... Respondent/Accused
PRAYER:- Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, against the judgment of acquittal passed by the learned Judicial Magistrate Court at Sathyamangalam, Erode District in C.C.No.684 of 2004, dated 22.10.2008 for the offence under Section 138 r/w 142 of Negotiable Instruments Act.
For Appellant : No appearance
For Respondent : Mr.K.Sadasivan for Mr.P.M.Duraiswamy
J U D G M E N T
This Criminal Appeal has been filed against the judgment of acquittal passed by the learned Judicial Magistrate Court at Sathyamangalam, Erode District in C.C.No.684 of 2004, dated 22.10.2008 for the offence under Section 138 r/w 142 of Negotiable Instruments Act.
offence said to have been committed by her. The accused pleaded not guilty and therefore, the learned Judicial Magistrate has conducted the trial. During trial on the side of the complainant, the complainant examined herself as P.W.1 and marked P1 to P4 as Exhibits. The complainant's side evidence was closed with P.W.1. Thereafter, the accused was questioned under Section 313 of the Criminal Procedure Code with regard to the incriminating circumstances available in the evidence of the P.W.1. The accused denied the same as false and examined herself as D.W.1. She also examined two more witnesses as D.W.2 and D.W.3 and marked D1 to D12 as exhibits. After closing the evidence on the side of the defence, the learned Judicial Magistrate heard the arguments on both sides and acquitted the accused by the Judgment dated 22.10.2008. Aggrieved by the same, the complainant has filed the present appeal.
The case of the appellant/complainant is that on 01.09.2004, the respondent/accused borrowed a sum of Rs.25,000/- from her as hand loan and with a view to discharge the said loan, the accused has issued a cheque for Rs.25,000/-. The said cheque has been marked as Ex.P1. Her further case is that she has presented the said cheque for collection in the Bank on 08.11.2004 and the same was returned on the same day with a bank memo “Payment stopped by the drawer”. The said bank memo has been marked as Ex.P2. Her further case is that she has issued a statutory notice on 19.11.2004, calling upon the accused to pay the amount. The office copy of the said notice has been marked as Ex.P3. After receipt of the said notice, instead of making payment, the accused has sent a reply notice dated 23.11.2004 with false averments and hence, the appellant was forced to file the above case. The said reply notice has been marked as Ex.P4.
Tamilmani used to discount the cheques which were issued to her by her customers and also lend money by obtaining blank and signed cheques as security. Her further case is that she had money transactions with him for the past two and half years and as on 05.10.2004, she was liable to pay a sum of Rs.2.5 lakhs to him and also she has paid a sum of Rs.2.5 lakhs as full and final settlement of her transactions with the said Tamilmani on 05.10.2004 and at that time, the said Tamilmani returned only seven cheques and told her that one cheque has been misplaced and also assured that he will return the said cheque as soon as it is traced out. Her further case is that believing his words, she paid the amount to him and settled the matter. However, as abundant caution, she informed the Bank, not to honour the cheque, if it is presented for collection and that being so, she was very shocked and surprised to receive notice from the complainant and hence, she has issued a reply notice, appraising the real facts.
“The rebuttal evidence need not be direct and
it can be inferred even such circumstances. It was also held that the defence version is shown to be probable and also held that preponderance of probabilities is a rule for appraising the rebuttal evidence and the standard of proof required is not https://hcservices.ecourts.gov.in/hcservices/ that high as expected from the complainant.”
Sd/-
Assistant Registrar(CS VII)
//True Copy//
Sub Assistant Registrar
gsk
To
1.The Judicial Magistrate Court, Sathyamangalam,
Erode District.
2.The Public Prosecutor, Madras High Court, Chennai.
+1cc to MR.P.M.Duraisamy, Advocate SR.No.33922
GP(CO)
sm:21.6.2018
Crl.A.No.594 of 2009
3 issues framed by the court
Whether the learned Judicial Magistrate was right in acquitting the accused in a cheque dishonour case?
Whether the presumption under Section 139 of the Negotiable Instruments Act was properly rebutted by the defence?
Whether the High Court should interfere with the acquittal by the trial court in a cheque bounce prosecution?
Colour shows how this judgement treated each authority
M.S.Narayana Menon @ Mani Vs. State of Kerala and othersReferred¶19
2006 (3) C.T.C. Page 730
4 provisions across 2 enactments
T. Saroja
M. Sasikala
P. Rajamanickam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P. Rajamanickam
Parties & counsel
