S.Mukanchand Bothra(Deceased) Vs R.Krishnamurthy @ Kasthoori

Son of Late Shri.S.Mukunchand Bothra (*Amended as per order of this Court dated 21.04.2023 made in Crl.M.P.No.5152 of 2022 in Crl.A.No.329 of 2015) ... Appellant

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Vs

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R.Krishnamurthy @ Kasthoori Raja ... Respondent

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P r ayer: Criminal Appeal filed under Section 378(4) of the Code of Criminal Procedure to call for the entire records pertaining to the judgment passed by the Learned 4th Fast Track Court, George Town, Chennai, in C.C.No.411 of 2013 dated 11.05.2015 and to set aside the same.

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Crl.A.No.329 of 2015

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For Appellant : Party in person

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For Respondent : Mr.S.Haja Mohideen Gisthi JUDGM E N T

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This criminal appeal is filed against the judgment of the Magistrate- Fast

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Track Court No. IV, George Town, Chennai, dated 11.05.2015, made in C.C.No.411 of 2013.

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The judgment dated 11.05.2015 of the trial court acquitted the

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respondent of an offence under Section 138 of the Negotiable Instruments Act,

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This is a private complaint filed by the appellant under Section 200 of the

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Code of Criminal Procedure, alleging an offence under Section 138 of the

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Negotiable Instruments Act, 1881.

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The case of the appellant is that the respondent, namely R.

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Krishnamurthy @ Kasthoori Raja, who was also the Managing Director of a company called RK Productions Pvt. Ltd., involved in making movies, and the

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respondent himself being a director, along with other family members who are actors, etc., represented to the appellant that he had the capacity to repay the borrowed amount. Therefore, he sought a loan from the appellant for personal and family purposes. Led by the letter from the respondent claiming his capacity and stating that his family members, being well-known cine actors and directors, would support him, even if the respondent failed to repay the amount, the appellant thus

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lent a substantial sum of Rs. 65,00,000/- through two promissory notes dated

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02.01.2012 and 13.07.2012, executed by the respondent.

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On the first occasion, i.e., by the promissory note dated 02.01.2012,

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the borrowal was Rs.45,00,000/-. On the second promissory note dated 13.07.2012,

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the borrowal was Rs.25,00,000/-. This case pertains to the second borrowal of

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Rs.25,00,000/-. After repeated requests and reminders, the respondent issued two 3/40

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cheques for the outstanding amounts. In this case, a cheque dated 30.09.2012, drawn on ICICI Bank Limited, T.Nagar Branch, Chennai-17, was issued for Rs.25,00,000/- to discharge the liability owed to the appellant. The appellant presented this cheque for encashment at HDFC Bank Limited on 25.10.2012. However, to his shock and surprise, the cheque was returned dishonoured with the endorsement "funds insufficient" on 26.10.2012. According to the appellant, the respondent deliberately issued the cheque with a dishonest intention to cheat the appellant.

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The appellant, therefore, issued a statutory notice on 15.11.2012,

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calling upon the respondent to repay the sum of Rs.25,00,000/- covered by the said cheque within 15 days of receiving the notice. The respondent received the notice on 20.11.2012. Even after receiving the notice, no amount was paid within the statutory period, nor was any reply issued. As a result, the present complaint was filed within the prescribed time.

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Upon recording the sworn statement, the complaint was taken on file

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as C.C.No.411 of 2013. After issuing summons, the respondent appeared, was questioned, and denied the allegations and stood trial. To establish the case, the original appellant's son, the present appellant herein , M.Gagan Bothra, was examined as P.W.1. The subject matter cheque was marked as Ex.P1. The memo of dishonour was marked as Ex.P2. The legal notice issued to the respondent was marked as Ex.P3, and the acknowledgment card was marked as Ex.P4. The first promissory note dated 02.01.2012 was marked as Ex.P5, and the second promissory note dated 13.07.2012 was marked as Ex.P6. The letter from the respondent to the appellant dated 13.07.2012 was marked as Ex.P7. During crossexamination on behalf of the respondent, the reply notice issued by the respondent on 05.11.2012 was marked as Ex.D1. The complaint lodged by the appellant to the

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police was marked as Ex.D2, and another reply notice issued by the respondent

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was marked as Ex.D3.

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Upon being questioned about the material evidence and incriminating

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circumstances on record, the respondent denied them as false. Thereafter, no evidence was presented on behalf of the defence. The trial court considered the

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parties' case and evaluated P.W.1's evidence.

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The trial court, firstly, found that the respondent did not deny the

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signature on the subject matter cheque. It considered the admissions made by

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P.W.1 during cross-examination regarding the borrowal of Rs.10,00,000 by the respondent and the repayment of the same amount. The court also took into account the respondent's cross-examination about these transactions, during which certain blank forms of promissory notes and cheques were left with the appellant as

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security. It concluded that the admissions by P.W.1 concerning these transactions

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lend some credence to the respondent's defense.

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Thereafter, it considered the admission by P.W.1 that he filled out the

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cheques and the promissory notes, although these facts were not explicitly mentioned in the statutory notice, the complaint, or the proof affidavit filed on behalf of the appellant. Therefore, the trial court concluded that it is doubtful whether the promissory notes were written on the dates specified for the borrowed amounts as stated in the promissory notes.

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Thereafter, it considered the conduct of the appellant. When the appellant complained that the respondent had taken Rs.. 40,00,000/- as a loan promising to repay with interest at the rate of 24% per annum, and according to the appellant, the respondent had not repaid even a penny, they pleaded that they again advanced Rs.. 25,00,000/- in July 2012, which was doubted by the trial Court. The trial Court further examined the answers given in cross-examination, indicating that the complainant had no substantial income, leading to doubts about the ability

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to lend a sum of Rs.. 65,00,000/- to the respondent. The Court also considered the

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responses regarding the filing of Income Tax Returns, including reflecting the loan in those returns and the source of income mentioned therein, and held that the appellant failed to produce the Income Tax Returns. It further concluded that the source of income to prove possession of Rs.. 65,00,000/- in cash was also not established.

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The trial Court held that the respondent's version that the cheque was

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left as security for an earlier transaction involving Rs.10,00,000/- is probable, and it drew an adverse inference against the appellant for not producing records related to their finance business. The Court also considered that if a loan is granted for the production of movies, normally, rights such as satellite rights are documented in writing by the financiers, but such a document was not produced in this case. Finally, the Court noted inconsistencies in the appellant's case regarding the dates

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on which the loan was allegedly given and the differing standpoints in the

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complaint and in the evidence. For these reasons, it concluded that the appellant failed to prove the charge beyond any reasonable doubt and granted the benefit of doubt to the respondent, against whom the present appeal has been filed.

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Pending the appeal, the original appellant died on 17.04.2019, and his

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son P.W.1 , M. Gagan Bothra, was substituted as the appellant in the case. The appellant appeared in person and argued the matter.

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Firstly, it is the contention of the appellant that two cases were originally filed. Regarding a Rs.40,00,000/- loan, the cheque was issued in the name of a corporate entity, and the present respondent, being the director, was prosecuted individually, along with his company, in a separate case in C.C.No.473 of 2013. The trial court rendered two different verdicts, although both cases rested on similar reasoning and resulted in the respondent's acquittal. In response to the acquittal in the other case, Crl.A.No.330 of 2015 was filed. Unfortunately, the case

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was separately taken up, and this Court also confirmed the trial court’s acquittal. However, when a Special Leave Petition was filed in Special Leave Petition (Criminal) Diary No.36948 of 2022, the Hon’ble Supreme Court, while confirming this Court’s order and accepting the reasoning in paragraph No.10, and dismissing the petition, clarified that the other cases between the same parties should be decided on their own merits without being influenced by the observations made in the earlier order passed by this Court. Therefore, he submits that this is the other case between the parties, and this Court should consider the issue independently of

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the earlier order passed by this Court.

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The appellant further submits that, primarily, the trial Court gave the

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benefit of doubt to the respondent only because his father's Income Tax Returns were not produced. In that regard, along with the appeal, a petition in C.M.P.No.4345 of 2016 was originally filed to submit additional evidence.

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Regarding certain procedural issues, this Court had earlier directed him to 10/40

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withdraw that miscellaneous petition and file a fresh application. Accordingly, the appellant filed a petition in C.M.P.No.14042 of 2025 to let in additional evidence.

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The petition seeks to admit two documents as additional evidence. The first document is the Income Tax Returns of the original de facto complainant, S. Mukanchand Bothra, for the Assessment year 2013-2014, i.e., for the financial year

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2012-2013, starting from 01.04.2012 and ending on 31.03.2013, which relates to

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the period of borrowal as disclosed in the complaint. It is his submission that, from a review of the Income Tax Returns, along with the balance sheet and profit and loss account filed with the returns, it would be evident that the appellant's case is

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well-supported.

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The appellant stated that, although they had limited income during the

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year, they had cash reserves due to borrowings from family members, which they

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in turn lent to individuals like the respondent. The income tax returns support this

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stance, showing that the gross total income was Rs. 2,02,850/-. Additionally, it is

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evident that the appellant had taken loans primarily from family members and family concerns totaling Rs. 1,00,04,146/-, which they lent to various debtors amounting to Rs. 99,26,850/-. The name R.K Productions Pvt Ltd - Kasturiraja is explicitly mentioned in the details of loan debtors, with an amount of Rs. 65,00,000/- clearly recorded in those accounts. This document was not originally produced before the trial court. However, the appellant’s side conducted a detailed cross-examination in the trial court, and answers were provided. To counter the adverse inference drawn against the appellant, the document is now

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produced. The document was not initially filed because the presumption under the Negotiable Instruments Act, 1881 favors the appellant, leading to the belief that no further proof was required. Nonetheless, in exercise of its appellate powers, this court can admit such additional documents, examine them, and, if necessary, provide the respondent with an opportunity to cross-examine so that the documents can be properly placed on record.

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16.

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The appellant subsequently submitted that the respondent, along with

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the said corporate entity, had also filed a suit in O.S.No.6796 of 2012 before the IV

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Assistant City Civil Judge, Chennai. The suit prayed for a mandatory injunction directing the present appellant, S. Mukanchand Bothra, to return all the documents after duly canceling them, and for a permanent injunction restraining the appellant or any person claiming through him from initiating or taking any actions using the signed blank promissory notes, signed blank cheques, signed blank papers, signed blank letterheads, etc., and also for costs. After a full trial, the suit was dismissed. The findings related to issue Nos.1, 2, and 3 will be binding on the parties, at least concerning the factual aspects outlined in the judgment. The judgment was issued on 24.08.2016 following the filing of the appeal. Accordingly, the said document is now being produced as an additional document. No prejudice will be caused to the other side by accepting these as additional evidence. If these additional pieces of evidence are considered, the case of the appellant is further strengthened.

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The appellant further submits that the respondent themselves filed the

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suit in the Civil Court, as if they had left all these promissory notes, letterheads, and cheques blank and used them as security for earlier transactions. After a detailed trial on the merits, the Civil Court disbelieved this. Therefore, there can be no contrary findings in the present case. The suit was filed voluntarily by the respondent, who left the matter to become final and no appeal was filed against the Civil Court's judgment. Although this judgment may not be conclusive, it can certainly be considered by this Court as a relevant fact in support of the appellant's claim that the transaction involving Rs.10,00,000/- is separate from the current borrowal of Rs.65,00,000/-. The promissory notes and cheques in question were executed specifically for this present borrowal.

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The appellant also submits that this case involves the issuance of the cheque, which is supported by the duly marked promissory note. Additionally, the

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letter of undertaking dated 13.07.2012 is marked, further confirming this finding.

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Conversely, the respondent has presented no record to prove that these documents

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were provided only at the time of the previous borrowal of Rs.. 10,00,000/-. The

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respondent also chose not to appear and present his version in court. The entire

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framework of the Negotiable Instruments Act regarding the offence under Section 138 differs from that of other criminal offences. Merely raising doubts may not entitle the respondent to an acquittal. The presumption favours the appellant, and any rebuttal must be supported by solid evidence and demonstrate a preponderance

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of probability.

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The appellant relies on the judgment of the Hon’ble Supreme Court of

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India in the case of Sri Sujies Benefit Funds Limited vs M. Jaganathuan reported

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in (2024 INSC 602), particularly on paragraphs 15 and 16 of that judgment, to

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argue that the respondent has not taken back the cheque if he has discharged the earlier loan, and no receipt has been produced for the discharge of the same. When

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a substantial amount has been paid and received as a loan, the respondent cannot

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avoid repaying it.

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The appellant would submit that firstly, the Income Tax Returns are

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now produced before this Court. Even if the additional document is not considered,

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the appellant would argue that unless the respondent satisfactorily explains the

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circumstances under which the cheque was issued by the respondent or claims it

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was misused by the appellant, it should be presumed that the cheque was issued

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only in discharge of a legally recoverable debt or liability. In that regard, the appellant would rely on the judgement of the High Court of Madhya Pradesh in the

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case of Shrimati Ragini Gupta vs Piyush Dutt Sharma reported in Indian Kanoon

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( http://indiankanoon.org/doc/137354460).

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The appellant also relies on the judgment of the Hon'ble Supreme

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Court of India in the case of Rohitbhai Jivanlal Patel vs The State of Gujarat and

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another (Criminal Appeal No.508 of 2019), specifically citing paragraph nos. 20

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and 21 to argue that the respondent has not successfully rebutted the presumption beyond a preponderance of the probability. Additionally, reliance is placed on paragraph no. 7.1 of the same judgment, referencing the reflection of the loan amount in the Income Tax Returns and the payment of income tax related to the lending or the income. It is contended that this is not a s ine qua non for

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establishing the offence under Section 138 of the Negotiable Instruments Act.

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The appellant also relies on the judgment of the Hon'ble Supreme

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Court of India in the case of Bir Singh vs Mukesh Kumar, reported in (2019 (4)

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SC C 197), specifically paragraphs 37 and 38, to argue that when the payee is authorized to fill in the particulars and details on the cheque, there is no illegality in the original appellant or his son (the present appellant) filling out the cheques.

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The paragraphs 40 and 41 of the same judgment are cited to support the contention that after a blank cheque leaf, signed duly, is handed over to discharge the liability,

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the claim that only the appellant filled up the cheque cannot be maintained.

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Paragraph 43 of the judgment is specifically referenced, where the Hon'ble

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Supreme Court of India held that the High Court erred in ruling that there was an additional burden on the appellant to prove that he had given the loan.

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With reference to the importance that should be given to the presumption under the Negotiable Instruments Act, the appellant relies on the judgment of the Hon'ble Supreme Court of India in the case of T. Vasantha Kumar vs Vijayakumari reported in (2015 (8) SC C 378) and also depends on a judgment of this Court in C rl.RC.Nos.870 to 872 of 2017 reported in (2019 (4) CT C 871),

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where the facts regarding the additional support of the cheque by producing the promissory note were considered. When the cheque and the promissory note are produced by the appellant, the burden on the respondent is considered heavy,

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which the respondent fails to discharge in this case to rebut the presumption.

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The appellant submits that the respondent borrowed the amounts on

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the respective dates mentioned in the complaint and did not repay them. Based on

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mere technicalities and prolonged cross-examination asking inconsistent questions,

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the presumption cannot be considered rebutted, and the trial court should have convicted the respondent.

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Per contra, Mr. S. Haja Mohideen Gisthi, learned counsel appearing

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on behalf of the respondent, first relies on his counter affidavit to the application concerning the receipt of additional documents. He submits that no reason whatsoever is given even in the affidavit filed in support of the application, as he

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had the Income Tax Returns on hand, but they were willfully not produced during the trial. The learned counsel argues that repeated questions were asked about the Income Tax Returns during the trial, yet the appellant did not produce them. In this regard, the learned counsel relies on the following judgments to support the propositions that:

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(a) The power of the appellate Court to receive additional evidence should

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be exercised rarely and with due care;

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(b) Additional evidence cannot be received so as to fill up the lacuna that is

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found by the trial court;

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(c) The principles similar to those outlined in Order XLI Rule 27 of CPC

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should also be applied in criminal cases. Unless the person attempting to introduce additional evidence proves to the Court's satisfaction that, despite his best efforts

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and due diligence, he was unable to submit the additional documents, such

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documents should not be accepted by the appellate Court:

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(1) Union of India vs Ibrahim Uddin and another ((2012) 8

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SCC 148);

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(2) State (NCT of Delhi) vs Pankaj Chaudhary and others

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((2019) 11 SCC 575);

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(3) Ramesh Kumar Dadsena vs Vidyasagar Ratre

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(CRR.No.407 of 2024) decided on 26.04.2024;

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(4) Dilipbhai Bhawandas Aswani vs State of Gujarat and others (R/CR.RA.No.455 of 2022) decided on 13.08.2024;

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(5) J.Ramesh vs M/s.Lakshmi Precious Jewellery Pvt.Ltd., (Crl.P.No.12045 of 2024) decided on 07.03.2025;

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(6) P.C.Hari vs Shine Varghese and others (Crl.Rev.Pet.No.408 of

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2024) decided on 25.07.2025.

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Therefore, it is his contention that the additional documents, more

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specifically the Income Tax Returns, should not be accepted by this Court. Factually, he also doubts their veracity, arguing that if the turnover is in crores, even if the income is lower, the assessee is still required to file only audited statements of accounts. Therefore, the statements now produced belatedly are also doubtful, and the respondent would be prejudiced if the Court accepts the additional documents at the appellate stage.

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It is his second argument that, although two transactions are alleged in

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this case, even in the statutory notice, only the borrowing of Rs.65,00,000/- as a single series of transaction is mentioned. Merely because two cheques got dishonoured, the appellant filed two separate complaints. However, it is evident that it is only common evidence that was recorded in both cases. In fact, the 21/40

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allegations are identical in both cases. When the appeal against acquittal filed before this Court in the other case has already been considered on the merits, and a decision has been made to uphold the acquittal, and the Hon'ble Supreme Court of India has expressly agreed with those findings in its order on the special leave petition, then there is nothing for this Court to decide anew. When the Supreme Court has affirmed the earlier appeal, this Court cannot arrive at a different conclusion. The phrase “other cases between the parties” likely refers to any other case and not the present one related to the same transaction. Therefore, he submits that this Court should adopt the reasoning from the earlier criminal appeal, which

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has been confirmed by the Supreme Court, and dismiss this appeal.

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Even otherwise, the learned counsel would present his submissions on

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merits. He would argue that the presumption under Section 139 of the Negotiable Instruments Act was properly rebutted by the respondent. In this case, P.W.1 candidly admitted that the cheques and promissory notes were signed in blank, and

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all particulars were filled in only later by him. There was no evidence of actual monetary transfers on the dates alleged for the promissory notes and cheque. He

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also admitted that he did not know how those instruments were delivered to him. Therefore, in this regard, the learned counsel would rely upon the judgments of the Hon'ble Supreme Court of India in the case of Basalingappa vs Mudibasappa reported in (2019) 5 SC C 418 and in the case of Kumar Exports Vs Sharma Carpets reported in (2009) 2 SC C 513.

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29 . Secondly, it is his contention that when the cheque was a blank security instrument handed over in respect of the earlier transaction, no enforceable liability can be attached to the said cheque. In this regard, the learned counsel would rely upon the judgment of the Hon'ble Supreme Court of India in the case of M.S. Narayana Menon @ Mani vs State of Kerala and another, reported in (2006) 6 SC C 39, and the judgment in the case of John K. Abraham vs Simon C. Abraham

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and another, reported in (2014) 2 SC C 236 .

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It is his next contention that the appellant failed to prove his financial

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capacity or the source of the funds. The learned counsel argued that, in the absence of income tax assessments and sufficient income reflected therein, the respondent's claim should not be considered. The counsel also relied upon Section 269SS of the Income Tax Act, which prohibits cash loans above Rs . 20,000/- without bank transactions or tax documentation; the credibility of the entire transaction is undermined.

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The learned counsel would further argue that the statutory notice is

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defective and does not comply with Section 138(b) of the Negotiable Instruments Act, as it also demanded a total sum of Rs.75,43,100/-, which exceeds the cheque amounts. The learned counsel would finally contend that the cheque is being misused to impose criminal liability, despite there being a genuine civil dispute between the parties concerning the actual borrowal and dues, etc. He would argue

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that the trial Court has properly evaluated the evidence on record and has reached a conclusion, which is also upheld by this Court in an earlier case. Therefore, either by following that judgment or by independently assessing the evidence, this Court should affirm the findings of the trial Court, and there are no grounds to interfere in this appeal against acquittal.

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The learned counsel would also rely upon the judgment of this Court

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in the case of Balaji Seafoods Exports vs Mac Industries Ltd., reported in 1999 (I)

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CTC 6, with reference to the proposition that when the appellant's capability itself is in doubt, the respondent must be given the benefit of the doubt. The learned counsel would also cite the judgment in the case of M.S. Narayana Menon vs State of Kerala and others, reported in (2006) 6 SC C 39, to support the argument that the

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Court should take judicial notice of the practices prevailing in the respective businesses when considering the issue of liability. The learned counsel would further submit that, in this case, if it pertains to movie production, typically, the

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amount is settled or the financier becomes involved at the stage of the movie's release or during such disputes.

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He would also rely on the judgment of the Hon'ble Supreme Court of India in the case of John K. Abraham v. Simon C. Abraham reported in (2014) 2

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SC C 236 to argue that, in this case, the appellant has failed to prove his financial capacity. The learned counsel would also rely on the judgment of the Delhi High Court in the case of Sri Sai Saptagiri Sponge P vt. Ltd. v. The State and another, specifically referencing paragraph no. 44 to argue that if a blank cheque is handed over for an earlier transaction, it cannot be filled up and encashed for a liability alleged to have arisen later. For all these reasons, the learned counsel contends that the judgment of the trial court should be upheld.

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The Income Tax Returns are not supported with the books of accounts, and the trial Court has already drawn an adverse inference for not 26/40

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producing the books of accounts, which are still not produced. In response, the appellant submits that there is no requirement to produce the audited statements of accounts, and the burden lies solely on the borrower not to borrow amounts exceeding Rs. 20,000/- in cash, as per the provisions of the Income Tax Act. The appellant also argues that even if the audited statement of accounts is necessary,

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their non-filing has only different consequences and cannot lead to doubting the transaction itself.

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I have considered the rival submissions made on either side and

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perused the material records of the case.

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Though an argument is made with reference to the earlier findings of

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this Court in the connected Criminal Appeal, since the Hon'ble Supreme Court of

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India has also held in the final part of the order in the special leave petition that the

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other cases between the same parties may be decided on their own merits

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uninfluenced by the observations made in the impugned order, and since it is stated

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that this is the only other case pending between the parties, I am of the view that

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this case requires consideration independently on merits uninfluenced by the earlier order passed by this Court. Accordingly, I proceed to consider this case on its own merits.

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Firstly, by producing the cheque and proving the ingredients,

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including issuing a statutory notice and through the deposition of PW-1, stating

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that it is for a legally enforceable debt, the complainant has discharged his initial

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onus, and thus the presumption under Section 139 of NI Act arises in his favour.

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The questions that are to be further determined are whether the respondent had rebutted the presumption and if he has done so, whether there is further proof of the liability.

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Firstly, the subject matter cheque is for a sum of Rs . 25,00,000/- and

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is dated 30.09.2012. Upon reading the entire evidence of P.W.1, both the chiefexamination and cross-examination, the following facts are clear that it is signed by the respondent and all the other particulars, including the name as S.Mukanchand Bothra, the date as 30.09.2012, the amount as Rs.25,00,000/- both

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in figures as well as in words were filled up by the de facto complainant’s son

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P.W.1 in his own handwriting. As a matter of fact, in the instant case, after the cheque was dishonoured, a statutory notice dated 15.11.2012 was issued. The case

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of the appellant at the earliest point of time with reference to the borrowal is as

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follows:

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“ The 1 st of you is a private limited company under the name and style of R.K.Productions private limited and the 2 nd of you is one of the directors of the 1 st of you. The 2 nd of you approached my client to borrow a huge amount for the business of the 1 st of you representing that the 2 nd of you is the “ s a mbandi ” of the superstar Rajnikanth and claiming that 2 nd of you is the father of Cine Actor Dhanush and Director Selvaraghavan and father-in-law of Rajnikanth’s daughter Aishwarya and the director of the 1 st of you. The 2 nd of you represented to my client that you are having the

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repaying capacity for the amount to be borrowed and in default the other related persons stated above will discharge the dues borrowed and to that extent you have given a letter to my client and on such representation my client has given a huge amount of Rs.65,00,000/- (Rupees Sixty Five Lakhs) to the 2 nd of you on various dates for which the 2 nd of you have executed two promissory notes on various dates for the amounts received promising to repay the same on demand with an interest at 24% compound per annum, 2% monthly.”

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The same stand is taken in the complaint mentioned in paragraph no.3. The appellant's case is that the borrowings took place on various dates, and promissory notes were executed for these borrowings. However, during crossexamination and in the arguments before this Court, this stand was abandoned, and a new stand was adopted: on the dates of the promissory notes , namely, 02.01.2012, a sum of Rs.40,00,000/- was advanced, and on 13.07.2012, a sum of Rs.25,00,000/- was advanced.

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Secondly, from the averments made at paragraph no.3 of the

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complaint as well as in the statutory notice, it is clear that a letter is given by the respondent mentioning his relatives and other family members and stating that they will pitch in and repay the amount, even if there is a default on the part of the respondent. It is the specific case that only upon such a letter, the appellant was induced to lend such a large sum. The said letter is also marked as Ex.P7. However, it can be seen that the letter is dated 13.07.2012, and therefore, the borrowings occurred much earlier than the date of the letter.

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The third consideration is that it is the specific case of the appellant

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that such large amounts were advanced for his individual and family purposes in the complaint. The said version also changes in part during the trial, and P.W.1, in his cross-examination, states that the purpose of the borrowal was both to produce

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a movie called Asuran Moolam and for his personal purposes.

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Further, as per Exs.P5 and P6 - promissory notes, it is the appellant's

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case that the respondent borrowed the said amount, promising to repay it with

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interest at a rate of 24% per annum. The following are the answers given by P.W.1 with reference to the payment of interest.

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“U%/40.00.000-? th';Fk;nghJ vt;tst[ fhyj;jpy; jpUg;gpf;bfhLg;gjhf vjphp Twpdhh; vd;why; Toa rPf;fpuj;jpy; 4 my;yJ 5 khjj;jpy; bfhLg;gjhf Twpdhh;/ nkw;go gzj;ij th';fpajpypUe;J tl;o bgwg;gl;ljh vd;why; vjphp tl;o bfhLf;ftpy;iy/ vjphpaplk; tl;o bfhLf;ftpy;iy vd;W jpUg;gp jpUg;gp nfl;nlhkh vd;why; nfl;nlhk;/ U%/40.00.000-? gzj;jpw;F tl;o bfhLf;fhj epiyapy; eh';fs; vd;d eltof;if vLj;njhk; vd;why; eh';fs; gyKiw tl;o nfl;Lf;bfhz;oUe;j epiyapy; vjphp tPl;ow;F te;J nkYk; U%/25.00.000-? fld; bfhLf;FkhW nrh;j;J bfhLj;JtpLtjhft[k; vjphp Twpdhh;/ vjphp njhuhakhf 5 my;yJ 6 khj ,ilbtspapy; te;J nkYk; U%/25.00.000-? gzk; bfhLj;jhy; tl;oa[ld; nrh;j;J jpUg;gp bfhLg;gjhf Twpdhh;/ nk:Yk; U%/25.00.000-? bfhLf;Fk;nghJ U%/40.00.000-? gzj;jpw;F tl;o th';fhky; bfhLj;njhkh vd;why; tl;o th';fhky; jhd; bfhLj;njhk;/”

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Further with reference to the interest and handing over of the cheques,

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the following answers were made:

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“U%/25.00.000-? gzj;jpw;Fk; vjphp tl;o bfhLj;jhuh vd;why; tl;o bfhLf;ftpy;iy/ vjphp tl;o bfhLf;fhj epiyapy; ntW vd;d eltof;if vLj;njhk; vd;why; vjphpaplk; gzj;ij jpUg;gp nfl;lnghJ K%d;W fhnrhiyfis bfhLj;jhh;/ xU fhnrhiy U%/40.00.000-? ,uz;lhtJ fhnrhiy U%/25.00.000-?j;jpw;Fk; K%d;whtJ fhnrhiy tl;og;gzj;jpw;Fk; bfhLj;jhh;/ nkw;go K%d;W fhnrhiyfSk; njjp ,y;yhky; g{h;j;jp bra;ahky; ifbahg;gk; kl;Lk; bra;J vjphp bfhLj;jpUe;jhh; vd;why; rhpjhd;/ K%d;W fhnrhiyfisa[k; xnu njjpapy; bfhLj;jhuh vd;why; ,y;iy/ btt;ntW njjpapy; bfhLj;jhh;/ vjphp brhd;djd; nghpy; fhnrhiyapy; njjp kw;Wk; gzj;ij ehd; jhd; vGjpndd;/ vd;why; rhpjhd;/ K%d;W fhnrhiyfSk; xnu ehspy; v';fsplk; bfhLf;fg;gl;lJ vd;why; rhpjhd;/ K%d;whtJ fhnrhiy ve;j njjpa[ila fhnrhiy. Vt;tst[ gzj;jpw;fhd fhnrhiy vd;why; "hgfk; ,y;iy/ tl;og;gzj;jpw;fhf bfhLf;fg;gl;l 3tJ fhnrhiy v';fs; trk; jhd; cs;sJ/ 3tJ fhnrhiyia t';fpapy; tR{Yf;F jhf;fy; bra;atpy;iy vd;why; rhpjhd;.”

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44.

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The facts regarding advancing loan such as whether it was advanced

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on one lumpsum or on various dates, dates and timings of advancing loans, the

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handing over of the undertaking letter and the date in respect thereof, whether it was advanced with or without interest, whether two cheques or three cheques were given by the respondent, the dates on which the cheques were handed over, etc,, are the basic facts on which the complaint is filed. Even with reference to these basic facts, the appellant has not come up with a categorical case and has made

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different statements in the statutory notice and complaint and in the crossexamination.

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With those inconsistencies, when the complainant is insisting that they

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had advanced a huge sum totally amounting to Rs.65,00,000/- and Rs.25,00,000/-

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with reference to the present case and the entire cheque, except the signature, all

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other particulars are admittedly filled up by P.W.1 including that of the promissory

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note, on a wholesome reading of the entire evidence on record, one has to reach the

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conclusion that the accused has rebutted the presumption to the level of preponderance of probability. Not only that he has established a credible doubt

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over the very transaction as portrayed by the complainant. The various findings made by the trial Court cannot be said to be perverse in nature or an impossible view.

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With reference to the additional documents, certainly, the second

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document happened during the pendency of the trial and as such, can be accepted by this Court. Though it can be seen that the respondent had approached the Civil Court to establish that these documents were delivered by him as blank instruments and the same are being misused by the complainant, there in the suit filed by him, the respondent failed to establish the same to the level of preponderance of

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probability before the Civil Court and accordingly, the civil court has dismissed the

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suit which has become final which is also taken into consideration.

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47.

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However, with reference to the existence of a legally enforceable debt,

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it must be established in these proceedings. Even though the presumption under the

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Negotiable Instruments Act, 1881 arose in favour of the complainant, it came to be rebutted through thorough cross-examination and considering the different stands taken by the complainant in the statutory notice and the complaint on one hand, and in the evidence of P.W.1 , a credible doubt arises as to the very transaction pleaded by the complainant. Therefore, it cannot be said that the judgment of the Civil Court conclusively establishes the complainant’s right.

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With reference to the second document produced as additional

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evidence, I believe that the said document was very much available during the trial but was not produced. In any case, for disposing of this appeal, I am not considering the aspect of reflecting the accounts in the Income Tax Returns or the appellant's capability. I am deciding the appeal only based on the basic facts the appellant was expected to aver and prove to establish an offence under Section 138

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of the Negotiable Instruments Act. As such, the additional document is not necessary for the purpose. To this limited extent, C.M.P. No. 14042 of 2025 is partly allowed, with reference to Doc. No.2, i.e., the judgment of the City Civil Court, Chennai in O.S. No.6796 of 2012, which is taken on file and marked as Ex.P8. Regarding the Income Tax Returns, the application is dismissed because the appellant had the document and did not produce the same during trial, despite repeated questions relating to it, and secondly, decorates the capability and reflection, the finding is on other grounds and facts. Thus, even after allowing the additional evidence in part, the ultimate finding of the Trial Court in granting the benefit of doubt to the respondent accused cannot be overturned. The legal propositions which are submitted by both sides, by and large, by relying upon the decisions, are not in contention. The judgments are not dealt with in detail because, as it would be clear from the above, the issue is decided primarily on the inconsistencies and prevaricating stands taken on behalf of the complainant.

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