Subramanian Vs H.Pappi

Prayer: Criminal appeal filed under Section 378 of Code of Criminal Procedure to set aside the judgment passed in S.T.C.No.908 of 2012 dated 09.10.2020 on the file of Judicial Magistrate No.I, Perambalur.

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For Appellant(s): Ms.C.Sangamithirai For Respondent(s): Mr.P.Mani

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JUDGMENT

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This appeal against acquittal is filed against the judgment of the learned Judicial Magistrate No.I, Perambalur, dated 09.10.2020 made in S.T.C.No.908 of 2012. By the said judgment, the respondent/accused was acquitted of an offence under Section 138 of Negotiable Instruments Act, 1881. This is a private complaint filed under Section 200 of the Code of Criminal Procedure

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CRL A No. 320 of 2022

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complaining an offence under Section 138 of the Negotiable Instruments Act, 1881.

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The case of the complainant as per the complaint is that, the accused had borrowed a loan amount of Rs.5,25,000/- and had issued a cheque to the complainant on 11.05.2012. The accused has also promised to repay the amount within a week, but however, did not repay the same and finally issued a cheque on 22.05.2012, which upon presentation returned dishonoured. Thereafter, the statutory notice was issued, no payment was made, but however a reply was issued containing false particulars. The complaint was filed within time and upon recording sworn statement, the complaint was taken on file. Upon issue of summons, fresh notice and questioning, the accused denied the same as false and stood the trial.

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In order to bring home the charges, the complainant examined himself as PW1; one Senkathirselvan as PW2; one Selvaraj as PW3; and one Vamsikrishnan as PW4. The statutory notice that was issued was marked as Ex.P1, the reply notice was marked as Ex.P2, the original cheque was marked as Ex.P3 and memo of dishonour was marked as Ex.P4. During the course of the cross examination, the very same statutory notice was also marked as accused side Ex.D1. Thereafter, upon being questioning under Section 313 of Code of Criminal Procedure, the accused denied the same as false.

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The trial Court proceeded to consider the case of the parties. The trial

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Court disbelieved the version of the complainant and held the version of the accused as if the cheque was being misused by PW2 after getting those cheques from one Vallarmathi Finance as probable and acquitted the accused. As against which, the appeal is filed.

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Learned counsel appearing on behalf of the appellant would submit that in this case the appellant has duly proved the ingredients of the offence under Section 138 of Negotiable Instruments Act. The signature in the cheque has been admitted. The cheque has been dishonoured with an endorsement "insufficient funds". Even though in the reply notice of the accused, it was alleged that the cheque was issued with reference to another liability to the Senkathirselvan, absolutely nothing has been done to mark anything about the discharge and settlement of the said loan.

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As a matter of fact, even as per the case of the accused that they had given stop payment in respect of the ATM card and got a new ATM card and taken away the salary, enraged by which, the cheque is being presented, absolutely no evidence is produced in respect of the said version. In the absence of the same, the trial Court ought to have seen that the accused did not do anything to rebut the presumption and as such ought to have convicted the accused.

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Per contra, learned counsel appearing on behalf of the

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respondent/accused would submit that the complainant is not clear when the loan was advanced. Secondly, complainant being an advocate, the accused has categorically denied having any relationship with him. Thirdly, it can be seen that the cheque itself contains different handwritings and signatures in different inks which would probabilize the case of the accused.

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I have considered the rival submissions made on either sides and

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perused the material records of the case.

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It is essential to extract the first paragraph of the complaint in this case, which is reproduced as here under:-

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g[fhh;jhuh;. bguk;gY}u; khtl;lk;. bguk;gY}u; tl;lk; bu';fehjg[uk; fpuhkj;ij rhu;e;jtu;/ g[fhu;jhuhplk; vjpup. jhd; bgw;w fld; bjhiff;fhf U:/5.25.000/00 (U:gha; Ie;J yl;rj;J ,Ugj;J Ie;J Mapuk;)?f;F 11/05/2012?k; njjpapy; fhnrhiy xd;W bfhLj;jhh;/ ic& bjhifia xnu thu fhyj;jpw;Fs; jpUk;g t';fpapy; brYj;Jtjhf Twp xU fhnrhiyia vjpup. g[fhh;jhuhplk; bfhLj;jhh;/ ic& bjhifia 1 thuj;jpy; jpUg;gp bfhLf;ftpy;iy/ vjphp bfhLj;j SBI nrkpg;g[ fzf;F vz;/11085406455 MFk;/ Mdhy; ic& bjhifia vjpup 1 thuj;jpw;Fs; juhky; fhyk;jhH;j;jp g[fhu;jhuiu ,Gj;joj;J te;jhh;/ vjpupia g[fhh;jhuh; tw;g[Wj;jp jd; gzj;ij bfhLf;Fk;go nfl;L te;jhh;/ Mdhy; vjpup. g[fhu;jhuUf;F juntz;oa bjhif U:/5.25.000/00 (U:gha; Ie;J yl;rj;J ,Ugj;J Ie;J Mapuk;) f;F 22/05/2012?k; njjpapy; fduh t';fp Jiwk';fyk; fpis K:yk; nrkpg;g[ fzf;F vz; 1777101020634?d; go U:gha; Ie;J yl;rj;jp ,Ugj;J Ie;jhapuk; kl;Lk; fhnrhiy vz; 851569 bfhLj;J ic& fhnrhiyia tNYf;F mDg;g[';fs; mjw;Fs; g[fhu;jhuuhfpa c';fSf;F nru ntz;oa gzj;ij vjphp jd; t';fp fzf;fpy; gzk; nghl;L itg;gjhf

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(INSUFFICIENT FUNDS) jpUk;g te;J tpl;lJ/ ic& fhnrhiy

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brhd;dhh;/ Mdhy; vjphp xg;g[ bfhz;l go mtu;jk; t';fp fzf;fpy; gzk; nghlhjjhy; tNYf;F bfhLj;j fhnrhiyia 23/05/2012?y; (INSUFFICIENT FUNDS) jpUk;g te;J tpl;lJ/ ic& fhnrhiy 30/05/2012?y; vdf;F ic& Jiwk';fyk; t';fpapypUe;J bfhLj;jhh;fs;/ g[fhu;jhuUf;F nru ntz;oa gzj;jpw;F ic& vjphp fhnrhiy xd;iw nkhroahf bfhLj;J ic& g[fhh;jhuiu Vkhw;wp tUfpwhh; kw;Wk; Vkhw;wt[k; Kaw;rpf;fpwhh;/ mjdhy; ,J rk;ge;jkhf 11/06/2012?y; g[fhh;jhuh; jug;gpy; tf;fPy; nehl;lP!; bfhLj;jjw;F bgha;ahd gjpiy njo gpoj;J gjpy; nehl;lP!; vjphp bfhLj;Js;shh;/

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Careful reading of the above, it would convey a message as if the

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borrowal itself was made on 11.05.2012 and the borrowal was made by promising return of the amount within one week and the cheque was issued on 22.05.2012. Though the complaint is vague, this is the only meaning that can

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be made out from the above paragraph. With that background, if Ex.P1/Ex.D1/statutory notice is taken into account, it states as follows:-

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vd; fl;rpfhuhplk; fle;j 2 Mz;LfSf;F Kd;g[ j';fs; bgw;w fld; bjhiff;fhf U:gha; 5.25.000-? (U:gha; Ie;J yl;rj;jp ,Ugj;jp Ie;jhapuk; kl;Lk;) 11/05/2012k; njjpapl;L bguk;gY}u; SBI nrkpg;g[ fzf;F vz; 11085406455?d; go brf; vz;/851569?d; go eP';fs; xU fhnrhiyia bfhLj;jPh;fs;/

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Thus upon reading the statutory notice, it is the case of the

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complainant that the borrowal was made two years ago i.e., in the year 2010 and the cheque was issued on 11.05.2012, thus a different stand was taken in the statutory notice. In the proof affidavit which was filed by way of chief examination, it is stated that the request for borrowal was made on 15.03.2011

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and the amount was advanced on 10.04.2011 and the cheque was issued in

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discharge of the said liability on 11.05.2012. The said portion is extracted here under:-

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2/vjph;kDjhhh; tPLfl;Lk; brytpw;fhft[k;. kfdpd; gog;g[ brytpw;fhft[k;. U:/5.25.000-? (U:gha; Ie;J yl;rj;J ,Ugj;ije;jhapuk;) cldoahf. nyhd; nghl;L je;JtpLtjhf Twp. fpUc&;zhg[uk; fpuhkj;ij nrh;e;j uhkrhkp kfd; br';fjph;bry;td; vd;gtiua[k;. fpUc&;zhg[uk; fpuhkj;ij nrh;e;j uj;jpdk;gps;is kfd; bry;tuh$; vd;gtiua[k;. vjph;kDjhuh; miHj;Jte;J. 15?03?2011?y; fld; nfl;lhh;/ ehd;. br';fjph;bry;td; vd;gth; ntz;oath; vd;gjhYk;. mth; vjph;kDjhuhplk; ,Ue;J tl;oa[ld; fld; bjhifia th';fpf;bfhLj;JtpLthh; vd;w ek;gpf;ifapy;. ehd; tPLfl;Ltjw;fhf nrkpj;J itj;jpUe;j U:/5.25.000-?j;ij nkw;goahh;fs; Kd;dpiyapy; 10?04?2011?y; nkw;go bjhifia vjph;kDjhuUf;F fldhf bfhLj;njd;/ nkw;go fld; bjhifia. vdf;F jpUk;g bfhLf;Fk; bghUl;L. vjph;kDjhuh; 11?05?2012?y; U:/5.25.000-?f;fhd !;nll; ng';f; Mg; ,e;jpah. bguk;gY}u; fpis. 851569 vd;w vz;Qqs;s fhnrhiyia bfhLj;jhh;/

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Thus, in this case it can be held that the complainant even failed to

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discharge his initial onus in coming up with a clear and certain case as to when the accused issued the cheque and for what purpose. The case of the complainant was inherently contradictory.

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In the teeth of the same, when the accused had also cross examined the complainant and PW2/Senkathirselvan with reference to handing over of the cheque initially to one Vallarmathi finance, thereafter, getting back the

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cheques from the said Vallarmathi finance, one more signature was also obtained from the complainant in the very same cheque and Ex.P3 cheque having two signatures of the accused in line with the version of the accused, the trial Court holding the case of the accused as probable and rejecting the case of the complainant cannot be said to be a perverse view or an implausible view and as such, finding no merits, the appeal stands dismissed.

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10-11-2025

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Neutral Citation: Yes

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mpl

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