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2019 Supreme(Mad) 230
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. Muralidaran, J.
Girija (Deceased) and Ors. – Appellant
Versus
Perumalsamy – Respondent
Criminal Appeal No.1318 of 2003
Decided On : 02-01-2019
For the Appellant : Mr. A. Chari
For the Respondent: Mr. N. Balasubramanian
The presumption of innocence, the need for substantial reasons to overturn an acquittal, and the importance of expert opinion in handwriting analysis.
Headnote:
Negotiable Instruments Act - Acquittal Order - Section 138 - 138 - Summary: The court discussed the burden of proof on the accused, the presumption of innocence, and the need for substantial reasons to overturn an acquittal. The court emphasized the importance of expert opinion in handwriting analysis and the presumption of a legally enforceable debt when the signature on a cheque is admitted.
Fact of the Case:
The appellant filed a case under section 138 of the Negotiable Instrument Act after the respondent issued a cheque that was returned due to insufficient funds. The trial court acquitted the respondent, and the appellant's son filed an appeal after the appellant's death.
Finding of the Court:
The court found that the trial court failed to properly consider the evidence, including the respondent's failure to send a reply to the legal notice and the lack of expert opinion in handwriting analysis. The court concluded that the acquittal order was set aside, and a warrant was issued for the respondent's protection.
Issues: The issues included the burden of proof on the accused, the significance of expert opinion in handwriting analysis, and the presumption of a legally enforceable debt when the signature on a cheque is admitted.
Ratio Decidendi: The court emphasized the presumption of innocence, the need for substantial reasons to overturn an acquittal, and the importance of expert opinion in handwriting analysis.
Final Decision: The appeal was allowed, the acquittal order was set aside, and a warrant was issued for the respondent's protection.
This appeal is filed against the order of acquittal passed in C.C.No.284 of 1999 dated 29.04.2003 on the file of the learned Judicial Magistrate No. I, Dharmapuri under section 138 of the Negotiable Instruments Act.
2. The brief case of the appellant :
The Respondent/accused received a sum of Rs.43,76,000/- towards Government Transport Business from the appellant/complainant. After so many requests and demands, the respondent/accused issued the cheque for Rs.43,76,000/- bearing No. 106066 dated 17.5.1999 drawn on Indian Bank Dharmapuri Branch dated 26.5.1999. The cheque was presented in the above said Branch for collection by the appellant/complainant and the same was returned with an endorsement of “Insufficient funds”. Hence the appellant/complainant issued a lawyer notice on 29.5.1999 to the respondent and the notice was served. Therefore the appellant/complainant filed this case under section 138 of Negotiable Instrument Act.
3. Before the learned Trial Court the appellant examined her husband as PW1 and Branch Manager of the Bank as PW2 and Exhibits P1 to P4 were marked. No evidence was adduced on the side of the respondent / accused.
4. On careful perusal of records, Exhibit P1 the cheque dated 26.5.1999, seeing that the signature and the letters were on different inks and the appellant has not placed any materials to substantiate his claim of the loan amount of Rs.43,76,000/-, the learned trial Court acquitted the respondent/accused.
5. During the pendency of the appeal before this Court, the appellant died on 16.11.2006 and her son namely sakthivel filed impleading petition before this Court and the same was allowed.
6. The learned counsel for the appellant submits that the learned judge has failed to appreciate that the onus is on the respondent/accused to prove that he has not issued the cheque.
7. The learned counsel for the appellant submits that the Court below has failed to appreciate that the discharge petition filed by the respondent/accused has been dismissed and the Criminal Revision Petition challenging the same before this Court was also dismissed. Hence the trial Court has failed to appreciate that putting the burden of proof of the appellant is improper and therefore the judgment is bad in law.
8. The learned counsel for the appellant submits that the Learned Judge has failed to appreciate that the non examination of the appellant would not vitiate the case.
9. The learned counsel for the appellant submits that the learned Judge has failed to appreciate that in as much as the appellant has admitted the signing of the cheque has dismissed the case is highly improper and unjust.
10. The learned counsel for the appellant submits that the learned Judge has committed an error in rejecting the case of the appellant merely on surmises and also has failed to appreciate that in view of factual finding that the cheque belongs to the respondent/accused and it is for the respondent to prove the non - signing of the impugned cheque.
11. The learned counsel for the appellant submits that the learned judge has failed to appreciate that the respondent/accused has not even come to the box to substantiate his case.
12. The learned counsel for the appellant submits that the learned Judge has failed to appreciate that the legal notice given by the Appellant has not been replied by the respondent/accused and the learned judge has committed an error in not considering the evidence produced on behalf of the appellant both oral and documentary.
13. Per Contra, the learned counsel for the respondent submits that the learned trial Court has approached the evidence carefully and the judgment does not warrant any interference.
14. I heard Mr.A.Chari, learned counsel for the appellant and Mr.N.Balasubramanian, learned counsel for the respondent and perused the entire materials available on record.
15. The settled proposition of law laid down by the Hon'ble Supreme Court is that "An order of acquittal should not be lightly interfered with
