Back
2017 Supreme(Mad) 422
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, J.
G.S. Gunasekar – Petitioner
Versus
Vinayaga Trading Company – Respondent
Crl. O.P. No. 25972 of 2016 in Crl. Appeal No. 50519 of 2016
Decided On : 23-03-2017
For the Appellant : Mr. M. Sivavarthanan.
For the Respondent: Mr. D.R. Arunkumar.
Headnote:
Criminal Procedure Code - Section 255(1) - Negotiable Instruments Act - Section 138, 139 – Dishonor of Cheque - Cross examination - Complainant, in evidence adduced to the effect that in between him and the Accused there was no business transaction had admitted that the signature in invoices and receipts given to the Respondent/Accused through Aditya Agro Services belonged to him" and therefore, it concluded that already there was a business connection between Respondents/Accused and Complainant and fact was suppressed and that Complainant had given a false evidence - Finally, trial Court came to the consequent conclusion that the charge levelled against Respondents/Accused in respect of an offence under Section 138 of Negotiable Instruments Act was not proved on the side of Appellant/Complainant beyond reasonable doubt and acquitted them under Section 255(1) Cr.P.C. - Held, Court, considering the entire attendant facts and circumstances of the present case in an encircling manner, is of the earnest opinion Respondents/Accused had shaken the case of the Petitioner/Appellant/Complainant. Furthermore, Petitioner/Appellant/ Complainant had not established his case to the subjective satisfaction of this Court to the effect that the Respondents/Accused had committed an offence under Section 138 of the Negotiable Instruments Act, 1881 - Perusal of Judgment of Acquittal passed by trial Court, this Court does not find any material irregularities or patent illegalities in the eye of Law. In short, Judgment of the trial Court in C.C. is free from any legal flaw. Consequently, the "Grant of Special Leave" sought for by Petitioner/Appellant/Complainant is not acceded to by this Court - Criminal Original Petition is dismissed.
1. Heard the Learned Counsel for the Petitioner/Appellant and the Learned Counsel for the Respondents.
2. The Petitioner/Appellant/Complainant has filed the instant Criminal Appeal No. 50519 of 2016 as against the Judgment of the Learned Judicial Magistrate No. I, Udumalaipet in C.C. No. 13 of 2008.
3. The trial Court, while passing the impugned Judgment of Acquittal in C.C. No. 13 of 2008, on 27.09.2016, at paragraph 22, had, inter-alia, observed that ".....the Complainant, in the evidence adduced to the effect that in between him and the Accused there was no business transaction, had admitted that the signature in invoices and receipts given to the Respondent/Accused through Aditya Agro Services belonged to him" and therefore, it concluded that already there was a business connection between the Respondents/Accused and the Complainant and this fact was suppressed and that the Complainant had given a false evidence. Finally, the trial Court came to the consequent conclusion that the charge levelled against the Respondents/Accused in respect of an offence under Section 138 of Negotiable Instruments Act was not proved on the side of the Appellant/Complainant beyond reasonable doubt and acquitted them under Section 255(1) Cr.P.C.
4. Assailing the "Judgment of Acquittal" passed by the trial Court in C.C. No. 13 of 2008 dated 27.09.2016, the Petitioner/ Appellant/Complainant has filed the Crl. Appeal No. 50519 of 2016 by contending that the Respondents 2 & 3/A2 & A3 on 25.03.2007 borrowed a sum of Rs. 20 Lakhs from the Petitioner/Appellant/Complainant for the purpose of developing their business and for personal reason.
5. The Learned Counsel for the Petitioner/Appellant/Complainant submits that the Respondents 2 & 3/A2 & A3 had executed a Pronote evidencing the aforesaid borrowal and in fact, they had agreed to pay an interest of 12%. Besides this, it is represented on behalf of the Petitioner/Appellant that the Respondents/Accused had not repaid the amount and on 22.11.2007, a cheque bearing No. 354649 for Rs. 20 Lakhs was issued (drawn on M/s. Tamil Nadu Mercantile Bank, Udumalpet) to discharge the loan obtained from the Petitioner/Appellant.
6. The Learned Counsel for the Petitioner/Appellant brings it to the notice of this Court that the Petitioner/Appellant had deposited the cheque in his Bank Account at ICICI Bank, Udumalaipet for encashing the amount, but the cheque was returned for the reason that "Stop Payment" issued by the Respondents. Subsequently, the Petitioner/Appellant had issued a Lawyer's Notice Ex.P3 dated 28.11.2007 and the same was replied by the Respondents through Notice dated 12.12.2007. Inasmuch as the Respondents had not repaid the cheque amount, the complaint was filed before the trial Court, which was taken on file in C.C. No. 13 of 2008.
7. The Learned Counsel for the Petitioner/Appellant proceeds to take a stand that the trial Court had wrongly opined that the non-production of the pronote dated 25.03.2007 had raised suspicion, especially when the cheque was issued in the name of the Complainant.
8. At this stage, it is represented on behalf of the Petitioner/Appellant that the specific case of the Petitioner/Appellant/Complainant before the trial Court was that the promissory note was taken back by the Respondents/Accused after issuance of cheque.
9. The Learned Counsel for the Petitioner/Appellant/Complainant, in his evidence, had stated that he is a "Man of Means" and engaged in Motor Transport Business, besides having vast extent of agricultural lands and sufficient income to lend a sum of Rs. 20 Lakhs to the Respondents/Accused.
10. The Learned Counsel for the Petitioner/Appellant submits that the trial Court had acquitted the Respondents/Accused based only on assumptions and that too without any basis.
11. Per contra, it is the submission of the Learned Counsel for the Respondents/Accused that in the complaint, the Appellant/Complainant had stated that a hand loan of Rs. 20 Lakhs was given to the
