Single judge dismissed a Criminal Original Petition for leave to appeal. The court held no case was made out for relitigation as the trial court imported an essential ingredient of the offence, absence of legally enforceable debt, on the evidence.
Criminal Original Petition dismissed; Criminal Appeal rejected at the leave stage.
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.
Crl.A.Sr.No.6513 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2024
CORAM:
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
Crl.O.P.No.10997 of 2024 in Crl.A.SR.No.6513 of 2024
Nallathambi ...Petitioner
Vs.
Shanmugam ...Respondent
Prayer in Crl.O.P.No.10997 of 2034: Criminal Original Petition filed under Section 378(4) Cr.P.C. to grant leave to the petitioner to prefer appeal against the impugned judgment of acquittal passed in C.C.No.55 of 2019 on the file of the Judicial Magistrate, Fast Track Court, Kallakurichi.
Prayer in Crl.A.SR.No.6513 of 2024 : Criminal Appeal filed under Section 378(4) Cr.P.C. to set aside the judgment of acquittal passed in C.C.No.55 of 2019 dated 21.09.2023 on the file of Judicial Magistrate, Fast Track Court, Kallakurichi by acquitting the respondent under Section 138 of the Negotiable Instrument Act 1881 and convict the respondent in accordance with law.
For Petitioner : Mr.M.Vinoth
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ORDER
Crl.A.Sr.No.6513 of 2024
This Criminal Original Petition has been filed to grant leave to the petitioner to file the above appeal against the judgment of acquittal passed in C.C.No.55 of 2019 dated 21.09.2023 on the file of the learned Judicial Magistrate, Fast Track Court, Kallakurichi.
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Crl.A.Sr.No.6513 of 2024
NI Act before the trial court in STC.No.456 of 2013.
2.1 Upon issuance of summons, the respondent appeared and was served with the copies of the documents and as the respondent pleaded not guilty, the court below proceeded with the trial of the case. At the time of trial, on the side of the petitioner, P.W.1, P.W.2 and P.W.3 were examined and Exs.P1 to P9 were marked. On the side of the respondent, D.W.1 and D.W.2 were were examined and Exs.D-1 to D-5 were marked. On the basis of oral and documentary evidence, the court below found the respondent not guilty of the offence and, accordingly, acquitted the respondent, aggrieved by which the present petition has been filed seeking leave to appeal to prefer an appeal against the said order.
Court has failed to consider the evidence of the respondent herein, he had stated that the petitioner and the respondent were doing business together and were in touch till the year 2017 and they had also jointly purchased a property in the year 2012 and there was a difference of opinion in selling the property, they stopped communication between them in the year 2017. Moreover, the trial Judge had erroneously relied on Limitation Act, thereby, considering it as a time barred debt when there was existing and continuous transaction between the petitioner and the
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respondent. Without going into the merits of the complaint and corroborative
evidence and without following the procedures as contemplated under law, the learned Trial Judge had acquitted the respondent, which is wholly unsustainable and therefore, interference is warranted with the findings recorded by the court below.
advanced by the learned counsel for the petitioner and perused the materials available on record.
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Crl.A.Sr.No.6513 of 2024
proper prospective.
but has been brought into the statute only to safeguard the interests of the persons accused of a crime, who have since been acquitted, as otherwise, they would be put through the rigours of continuous litigation even after their innocence has been accepted by the trial court.
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Crl.A.Sr.No.6513 of 2024
doubt in respect of the version of the petitioner by way of cross examination, then
the burden of proof would shift back upon the petitioner to explain the facts and circumstances in which he had parted such a hug amount directly, without getting any supportive documents. Therefore, the petitioner has failed to prove that the received money for what purpose and whether the cheques were given for legally enforceable debt or liability. Hence, the petitioner failed to prove that the cheque was issued for legally enforceable debt or liability. The learned Trial Judge had rightly held that the inherent weakness in the case of the petitioner and which goes to the root of the case and the respondent is liable to raise a probable defence and had created a serious doubts with regard to the very maintainability of the case by the petitioner and that the cheque in dispute was not supported by any legally enforceable debt in respect of the petitioner and therefore, the respondent is not legally enforceable. Accordingly, the respondent created valid doubt and rebutted the presumption in favour of the petitioner and the petitioner has miserably failed to establish his case.
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Crl.A.Sr.No.6513 of 2024
accused so as to claim that the cheques were issued which stood dishonoured and, therefore, there is a legally enforceable debt which subsists. Thus, the trial court, on appreciating the materials available on record, had rightly dismissed the petitioner's complaint as he failed to establish that there was a legally enforceable debt for which the dishonoured cheque was issued by the accused and therefore, the said finding of the trial court cannot be interfered with.
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Crl.A.Sr.No.6513 of 2024
10.06.2024
msv
Index : Yes/No Speaking Order : Yes/No NCC : Yes/No
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Crl.A.Sr.No.6513 of 2024
M.DHANDAPANI, J.
msv
Crl.O.P.No.10997 of 2024 in Crl.A.SR.No.6513 of 2024
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Crl.A.Sr.No.6513 of 2024
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2 issues framed by the court
Whether there is a prima facie case to grant leave to appeal against the acquittal of the respondent under Section 138 of the Negotiable Instrument Act.
Whether the petitioner established the existence of a legally enforceable debt for which the dishonoured cheque was issued.
2 provisions across 2 enactments
Nallathambi
Shanmugam
M.dhandapani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
