Dismissed

M.C.B.Rajesh v. R.Sivasubramani

Madras HC22 Sept 2021CRL A/58/2015

Case brief

AI extract

What is this about?

The High Court dismissed a criminal appeal by a private complainant against an acquittal in a cheque bounce case. The court held that the accused successfully rebutted the statutory presumption under Section 139 of the Negotiable Instruments Act by demonstrating the complainant lacked the financial capacity to lend the alleged amount and failed to prove a legally enforceable debt.

What did the court decide?

The criminal appeal is dismissed; the acquittal order passed in C.A.No.34 of 2014 is confirmed.

M.C.B.Rajesh Vs R.Sivasubramani — Money Laundering | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 21.06.2021

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 PRONOUNCED ON : 22.09.2021

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CORAM :

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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Crl.A.No.58 of 2015

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M.C.B.Rajesh

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 ...Appellant / Complainant

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Vs.

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R.Sivasubramani ...Respondent / Accused

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Prayer : This Criminal Appeal has been filed under Section 378
of Cr.P.C., against the judgment passed in C.A.No.34 of 2014 on
the file of the VII Additional City Civil Court, Chennai, dated
28.08.2014 acquitting the accused in C.C.No.11205 of 2010 on the
file of Fast Track Court No.III, Chennai.

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For Petitioner :Mr.M.Fazulul Haq
for M/s.Juris and Justia
For Respondent :Mr.V.Ramamurthy
for M/s.M.Murali

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JUDGMENT

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(The case has been heard through Video Conference)

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Unsuccessful private complainant is the appellant herein.

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2.The appellant herein/private complainant has filed a
private complaint in C.C.No.11205 of 2010, before the learned
Judicial Magistrate No.II, Fast Track Court, Chennai, for the
offence under Sections 138 & 142 of the Negotiable Instruments
Act, on the basis of Ex.P1/cheque.

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3.It is alleged in the complaint that the respondent
herein/accused is a good friend of complainant, who was
introduced through a friend viz., Ganesan two years before. The
accused based on their friendship, during the year December 2009
requested him to advance an amount of Rs.25,00,000/- as he had
some business as well as family commitments and further stating
that he will return the same within a period of one month time.

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https://hcservices.ecourts.gov.in/hcservices/

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Accordingly, the complainant advanced a sum of Rs.25,00,000/- to
the accused and the accused had failed to return the said
amount. Thereafter, on repeated request the accused had issued
Ex.P1/cheque for a sum of Rs.25,00,000/-, dated 10.02.2010 drawn
on UTI Bank, Karur branch bearing Cheque No.024814 and it was
dis-honoured and after issuing the notice, the complainant has
filed complaint against the accused.

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4.The suggestive case of the respondent/accused is that the
complainant is a stranger and the complainant has no source of
income to lend such a huge amount of Rs.25,00,000/- in the year
2010. Further, it is stated that the complainant has given 10
unfilled signed cheques to his brother viz., Chellaperumal. One
Ganeshan, who is the friend of the Chellaperumal, has taken some
of the unfilled signed cheques from Chellaperumal's office and
he set up the complainant to file the complaint. The said
cheques were issued from UTI Bank and it was subsequently
amalgamated with Axis Bank. Old cheque of the year 2007 was
fabricated in this case.

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5.After the trial, the learned Judicial Magistrate has
convicted the respondent/accused for the offence under Sections
138 & 142 Negotiable Instruments Act and sentenced him to
undergo one year simple imprisonment and to pay the cheque
amount as fine, in default to under go one month simple
imprisonment. As against the order of conviction, the
respondent/accused has preferred an appeal in Crl.A.No.34 of
2014, before the VII Additional City Civil Court, Chennai. The
learned Judge has allowed the said appeal by an order dated
28.08.2014 and set aside the conviction and sentence passed by
the trial Courst and acquitted the respondent/accused. As
against the said order of acquittal, the complainant has
preferred the present appeal before this Court.

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6.Heard both the counsel appearing for the parties and
perused the materials placed on record.

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7.The learned counsel for the appellant herein / complainant
would contend that the source of income of the
respondent/accused has been duly explained by P.W.1 and there
was no reply notice sent by the respondent/ accused and in
the absence of any cogent evidence, the Lower Appellate
Court has committed an error in reversing the order of
conviction passed by the trial Court and acquitting the
respondent/accused. The learned counsel also relied upon a
decision of the Hon'ble Supreme Court, reported in CDJ 2019 SC
1545 – [Rahul Sudhakar Anantwar Vs. Shivkumar Kanhiyalal
Shrivastav].

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8.From the evidence of PW1 and Ex.P1/Cheque, Ex.P2/return

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https://hcservices.ecourts.gov.in/hcservices/

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Memo, Ex.P3/statutory notice, Ex.P4/acknowledgment card for
Ex.P3, this Court finds that in the absence of any dispute as to
the signature and the cheque being issued from the account of
the respondent/accused, the appellant/private complainant is
entitled for presumption under Section 139 of the Negotiable
Instruments Act. Now, it is the turn of the respondent/accused
to rebut the same.

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9.The standard of the proof that is required to probablise
the suggestive case of the accused in a case filed under Section
138 of Negotiable Instruments Act is that the presumption under
Section 139 of Negotiable Instruments is as that of statutory
presumption, however, the same is rebuttal. Then, it is for the
accused to rebut the evidence either by entering into the
witness box or by eliciting answer in the cross-examination of
the prosecution witnesses. The standard of proof that required
to shift the burden on the shoulders of the accused is based on
the principles of “preponderance of probability” and not on the
principle as being examined in the criminal case to prove the
guilt of the accused “beyond reasonable doubt”.

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10.It is well settled that the proceedings under Section 138
of Negotiable Instruments Act are quasi-criminal in nature. The
principles that will apply to acquittal in other criminal cases
are not applicable in cases instituted under the Act.

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11.The test of proportionality should guide the construction
and interpretation of “reverse onus clauses” and the
respondent/accused cannot be expected to discharge an unduly
high standard of proof. Since the proceedings under Section 138
of the Negotiable Instruments Act are quasi-criminal in nature,
it is sufficient enough for the accused to prove the “suggestive
case or defence theory” up to the “level of preponderance of
probability”.

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12.The learned counsel for the respondent/accused would draw
my attention to the averment made in the complaint and the
evidence of PW1 to the effect that as stated supra, based upon
the friendship during the year December 2009 at the request of
the accused, the complainant said to have advanced a sum of
Rs.25,00,000/- to the accused, for the purpose of his business
and family commitments, so is the evidence of PW1 in the chief
examination. However, in the cross examination, PW1 could state
that it is for the construction of his house.

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13(a).On a perusal of the complaint and its averments and
evidence in chief examination of PW1, this Court finds that the
date of the borrowal and how the complainant lend such a huge
amount of Rs.25,00,000/-, even in the year 2010 whether he is
financially sound enough or not were not spoken to. However,

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https://hcservices.ecourts.gov.in/hcservices/

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this Court in view of the statutory presumption under Section
139 of the Negotiable Instruments Act, confine itself as to the
rebuttal evidence.

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13(b).The purpose of the loan alleged to have been given by
PW1 to the accused as mentioned in the complaint is totally
finds to be different as elicited in the cross examination.
Date of the payment of money has not spoken to by PW1 either in
the complaint or in PW1 witness box, however, during the cross
examination, he has evaded to answer the exact date.
Rs.25,00,000/- as loan is not a small amount. No reasonable and
prudent man, having given loan of a sum of Rs.25,00,000/-,
without remembering the date.

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14.For the reasons best known he evaded to answer the same
in cross examination assumes significance. Neither in the
complaint nor in PW1's chief examination, he has avoided the
date of payment of loan of such huge amount of Rs.25,00,000/-
and he evaded the answer in the cross examination too assumes
significance and relevant.

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15.Furthermore, in the cross examination, he could state
that he had borrowed a sum of Rs.18,00,000/- from one
Mr.Ganeshan in order to pay Rs.25,00,000/- to the complainant.
As to the date of borrowal, it is elicited from the cross
examination of PW1 that PW1 alleged to have paid an amount of
Rs.25,00,000/-, in the month of December 2009, whereas, he
received money loan from his friend Ganeshan to the tune of
Rs.18,00,000/- only in the year 2010. This Court did not find
any nexus since alleged borrowal of the complainant of
Rs.18,00,000/- from his friend only in the year 2010 not in the
year 2009, so as to make a payment to the accused in December
2009 assumes significance.

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16.In order to demolish the case of the complainant, the
accused during the cross examination has elicited answer to
create a reasonable doubt to the level of preponderance of
probability as to the non existence of legally enforcible debt
preceding Ex.P1/cheque. In the cross-examination, PW1 has
developed his case that he had received a sum Rs.18,00,000/-
from his friend viz., Ganesan and two lakhs from one Ekambaram
and he had only Rs.5,00,000/- at his hand except the cheque
subsequently issued, he has not recorded any evidence as to the
alleged hand loan borrowed by the accused from the private
complainant. Had there been a payment of Rs.25,00,000/- as
hand loan from complainant to accused no reasonable and prudent
man will lend such a huge amount of Rs.25,00,000/- without any
assurance. Evidencing such payment from PW1 to the accused also
caused serious doubt as to the alleged loan said to have been

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https://hcservices.ecourts.gov.in/hcservices/

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given by PW1 to the accused before the execution of
Ex.P1/Cheque. In the cross examination it is elicited that

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vjphp tPL fl;obfhz;oUe;jhh; mjw;F vd;dplk; gzk; th';fpdhh;/ U:/2500000 fldhf bfhLf;Fk; mstpw;F vdf;Fk; vjphpf;Fk; vd;d beUf;fk; vd;W nfl;lhy; vd;dplk; nrh;e;J bjhHpy; bra;ayhk; vd;W vjphp brhd;dhh;/

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vjphpf;F ehd; U:/2500000 fldhf bfhLf;Fk;nghJ ve;j MtzKk; bfhLf;ftpy;iy/ 1 khjj;jpy; gzk; jpUk;g jUtjhf brhd;dhh;/ vd;dplk; ,Ue;j U:/500000I buhf;fkhf tPl;oy; itj;jpUe;njd;/

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Mdhy; ehd; tPL fl;Ltjw;F jhd; gzk; bfhLj;njd;/

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17.Yet another point is that Ex.P1, the cheque in issue is
from UTI Bank Limited. In the cross examination it is
specifically put to PW1 that Ex.P1/cheque is of UTI Bank and the
same is amalgamated with Axis Bank and the old cheuqe of the
year 2007 has been misused and presented after amalgamation.
However, PW1 has denied the same. Though PW1 has denied the
same, he has not taken any steps to show that the cheque is an
active cheuqe even after amalgamation on the date of the
issuance of cheque viz., 10.02.2010. In the cross examination
he has stated that

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vd;dplk; U:/25 yl;rk; gzk; ,Ue;jJ vd;gjw;fhd Mtzk; VJk; jhf;fy; bra;njdh vd;why; ,y;iy/ vdf;F t';fp fzf;F cs;sJ/ ehd; t';fp fzf;fpypUe;J vjphpf;F gzk; bfhLf;ftpy;iy/ ntW xU ez;ghplk; ,Ue;J bgw;Wf; bfhLj;njd;/ fnzrd; vd;gthplk; U:/18 yl;rk; Vfhk;guk; vd;gthplkpUe;J 2 yl;rKk; lhf;lh; ghyFUrhkp vd;gthplkpU;eJ U:/1 yl;rKk; th';fp itj;jpUe;njd;/ vd;Dila eiffis itj;J U:/4 yl;rk; bgw;W me;j gzj;ij fldhf bfhLj;njd;/ ,e;j tptu';fis g[fhh; kD Kjy; tprhuiz gpukhd thf;FK:yk; t/ mwptpg;g[ Mfpatw;wpy; brhy;yp cs;nsdh vd;why; ,y;iy/

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18.From the answer elicited in the cross examination, PW1
has admitted that he has not filed any document to show that he
had Rs.25,00,000/- in his account and he has not paid the amount
by withdrawing from his bank account. However, used to say he
borrowed a sum of Rs.18,00,000/- from one Ganesan and
Rs.2,00,000/- from Ekambaram and Rs.1,00,000/- from one
Dr.Balagurusamy and mortgaged jewels to raise Rs.4,00,000/-.

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19.Furthermore, for the reasons best known, neither in the
notice nor in the complaint or in the PW1's evidence, the

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https://hcservices.ecourts.gov.in/hcservices/

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private complainant has successfully evaded to mention the
particulars of the payment made and besides the details of the
payment has been deliberately omitted to be mentioned in the
above said pleadings because of evidence and hence, in view of
the lacunae in the complaint and the evidence of PW1 as to the
particulars of payment as narrated supra coupled with answer
elicited in the cross examination of PW1, cause serious doubt as
to the existence of the alleged relationship or business
transaction alleged to have been entered between PW1 and the
accused.

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20.The financial capacity of PW1 to lend such a huge amount
of Rs.25,00,000/- in the year 2010 and on a cumulative reading
of the cross examination and the answer elicited in the cross-
examination as narrated supra, goes to show that the defence
have successfully probablised the suggestive case that
PW1/private complainant does not have any source of income to
raise such huge amount of Rs.25,00,000/- and the fact that he
has evaded to say the date of such alleged payment especially
when the payment is such a huge amount of Rs.25,00,000/- and the
other contradiction with regard to details of payment of alleged
loan and alleged cumulation of source of finance before lending
and specific answer in the cross examination about his borrowal
of Rs.18,00,000/- from the said Ganeshan, that was only in the
subsequent year not during the period of alleged payment, this
Court finds that the accused has successfully demonstrated the
suggestive case to the preponderance of probability level and
hence presumption in favour of the accused under Section 139 of
the Negotiable Instruments Act is successfully rebutted.

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21.Now, it is turn for the appellant/private complainant to
prove his legally enforcible debt and his financial source. The
complainant has not examined any person to show his alleged
borrowal and cumulation of the source of income as elicited in
the cross-examination. In the absence of any legally enforcible
debt and also his financial capacity to lend such a huge amount
and other lacunae as made out earlier, this Court finds that his
complaint has not made out offence under Section 138 of the
Negotiable Instruments Act and no positive evidence has been let
in by the private complainant/appellant to show his financial
capacity and pre-existing legally enforcible debt, after
rebuttal by the accused.

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22.In such view of the matter, this Court is of the
considered view that the order of acquittal passed by the Lower
Appellate Court for different reasoning is just and proper and
the same does not suffer from any irregularity or illegality,
perversity in finding and hence, this appeal is devoid of merits
liable to be dismissed.

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https://hcservices.ecourts.gov.in/hcservices/

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23.Accordingly, this Criminal Appeal stands dismissed and
the order passed in C.A.No.34 of 2014, by the VII Additional
City Civil Court, Chennai, dated 28.08.2014 acquitting the
accused in C.C.No.11205 of 2010 on the file of Fast Track Court
No.III, Chennai, is hereby confirmed.

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Sd/-

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Assistant Registrar (CS-VI)

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// True Copy //

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Sub Assistant Registrar

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dua

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To:

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1.The Metropolitan Magistrate, Fast Track Court No.III, Saidapet, Chennai.

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2.The VII Additional City Civil Court, Chennai.

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3.The Section Officer, Criminal Section, High Court, Madras.

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+1cc to M/s.M.Murali, Advocate SR.No.48812

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Crl.A.No.58 of 2015

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SJ(CO)

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RVM(21/10/2021)

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https://hcservices.ecourts.gov.in/hcservices/

M.C.B.Rajesh v. R.Sivasubramani

Case brief

What is this about?

What did the court decide?

M.C.B.Rajesh v. R.Sivasubramani

Case brief

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